{
  "id": 2542897,
  "name": "S. A. Hayward v. Frank Scott",
  "name_abbreviation": "Hayward v. Scott",
  "decision_date": "1904-06-28",
  "docket_number": "",
  "first_page": "531",
  "last_page": "535",
  "citations": [
    {
      "type": "official",
      "cite": "114 Ill. App. 531"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 405,
    "char_count": 8511,
    "ocr_confidence": 0.549,
    "sha256": "7ff7963ec738e5744a3b58885251700e5de7ab84193678332fd908d0ee9eaa50",
    "simhash": "1:b70d4cbedf39a5e1",
    "word_count": 1405
  },
  "last_updated": "2023-07-14T17:53:49.110006+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "S. A. Hayward v. Frank Scott."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Baume\ndelivered the opinion of the court.\nThis is an action in assumpsit by appellant against appellee, to recover damages for a failure to deliver 3,500 bushels of white corn, claimed to have been purchased by appellant, on May 29, 1903, for forty cents per bushel. To the declaration, consisting of two special counts, the common counts and account stated, defendant pleaded the general issue, and thereupon the cause was tried by a jury, resulting in a verdict for the defendant, upon which the court entered judgment against plaintiff for costs.\nPlaintiff contended that the contract for the sale and delivery to him of the corn, was unconditional, while defendant contended that the contract gave him the option to call the sale off at the end of the week, if the weather was bad. We are unable to say that the conclusion arrived at by the jury, upon the issue of fact involved, was not warranted by the evidence.\nNumerous errors are assigned on the record, in the admission and exclusion of evidence and in the giving and refusing of instructions.\nOn the trial, plaintiff offered to show that he was obliged to buy elsewhere a like quantity of corn, in lieu of the corn he claimed to have purchased from defendant, and was compelled to pay therefor the then market price of forty-four and one-half cents a bushel. This evidence was competent under the averments of one of the counts of plaintiff\u2019s declaration, but when the same was offered, the court asked counsel for plaintiff whether there were any special damages, to which counsel for plaintiff replied, \u201cWe allege no special damages except the fact is averred that he had to buy corn to take the place of that corn and that he was thereby damaged so much.\u201d The court then said : \u201c It is a case of the difference between the contract price and the market value.\u201d Counsel for plaintiff replied, \u2018\u2018 Yes, sir,\u201d thus limiting the measure of damages to the difference between the contract price and the market value. It was conceded that the market price of corn had advanced four and one-half cents per bushel, and this was, even under the pleadings, the full measure of damages recoverable in the case, no other special damages being alleged. Whether the measure of damages was established by proof that plaintiff bought 3,500 bushels of corn at forty-four and one-half cents or by proof that the difference between the contract price and the market value was four and one-half cents, became . immaterial except as an abstract proposition, the damages being the same ascertained by either method. In the face of the statements by counsel for plaintiff, above quoted, and upon which the ruling by the court was manifestly predicated, error cannot be assigned upon such ruling.\nOn direct examination of plaintiff, he was asked the following question: ' \u201c You may state whether or not in that conversation anything was said either by you or Scott to the effect that if the weather interfered the contract would be called off ? \u201d The question was objected to as leading, and the objection was sustained. The ruling by the court on this objection was right. The question would have been competent in rebuttal, but was clearly leading on direct examination by plaintiff\u2019s counsel of his own witness, and was evidently propounded in anticipation of the defendant\u2019s defense. For the same reasons, the objection to a similar question asked the witness Hild, on his direct examination, was properly sustained. That the question was improper on direct examination, did not make it improper on cross-examination. It is elementary that a more liberal rule prevails in the cross-examination of a witness, than in direct examination.\nIt is urged that the witness Boos, called on behalf of defendant, was permitted, over plaintiff\u2019s objection, to give opinion evidence as to the true interpretation of the contract between plaintiff and defendant. This is a misapprehension of the purpose and effect of the testimony of the witness. Here voluntary statements of a third party, with reference to the subject-matter of the controversy between plaintiff and defendant, would not be competent; but where, as in this case, it was sought to prove a statement by plaintiff, alleged to be in the nature of an admission, made in answer to a question addressed to him by such third party (Boos), it became necessary, in order to make such answer intelligible, that the question propounded by Boos should be known to the jury, although such question incidentally involved the expression of his opinion as to the true interpretation of the contract. The question asked the witness was eminently proper. If - his answer was in part not responsive or incompetent, it devolved upon counsel to move the court to strike out such portion and obtain a ruling by the court on such motion.\nWe have considered in detail all of the other errors assigned on the rulings of the court in the admission and exclusion of evidence, and are of the opinion that they are not tenable.\nPlaintiff\u2019s third refused instruction, laying down rules to be applied by the jury in determining the preponderance of the evidence, and in weighing the evidence of witnesses, was substantially covered by plaintiff\u2019s second and fourth and defendant\u2019s second given instruction. Plaintiff\u2019s eighth refused instruction was 'covered by his seventh given instruction. Plaintiff\u2019s ninth refused instruction was properly refused as laying down an incorrect measure of damages.\nDefendant\u2019s first given instruction is as follows: \u201cThe court instructs you, as a matter of law, that the burden of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of the evidence. If you find that the evidence bearing upon plaintiff\u2019s case is evenly balanced, or that it preponderates in favor of the defendant, then the plaintiff cannot recover, and you should find for the defendant.\u201d This instruction is criticised because of its use of the expression, \u201cfind that the evidence bearing upon the plaintiff\u2019s case.\u201d It is insisted that the instruction omits the necessary words, \u201cif you believe from the evidence,\u201d or \u201cin that state of the proof,\u201d and directs the consideration of the jury to the evidence \u201cbearing upon the plaintiff\u2019s case\u201d instead of the evidence \u201cbearing upon the whole case.\u201d The use of the expression \u201cbelieve from the evidence\u201d in the concluding sentence of this instruction, thus, \u201cif you believe from the evidence that the evidence bearing upon the plaintiff\u2019s case,\u201d etc., would be mere tautology, and tend to confuse rather than otherwise. The expression \u201cbearing upon the plaintiff\u2019s case,\u201d is equivalent to \u201cbearing upon the plaintiff\u2019s cause of action,\u201d the only matter in controversy, and was manifestly so understood by the jury. We do not regard the instruction as erroneous, for the reasons urged.\nThe instructions considered as a series, fully and fairly advised the jury as to the law of the case, and the record being free from prejudicial error, the judgment is affirmed.\nAffirmed.\nHon. George W. Brown, late presiding justice of this court, took no part in the consideration of this case.",
        "type": "majority",
        "author": "Mr. Presiding Justice Baume"
      }
    ],
    "attorneys": [
      "W. E. Curran, for appellant.",
      "Jesse Black, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "S. A. Hayward v. Frank Scott.\n1. Assignment of error\u2014when, cannot be based upon ruling of court. A ruling of court which was predicated upon the statement of complaining counsel cannot be assigned by him as error.\n2. Leading question\u2014when, improper. A leading question asked upon the direct examination of a witness for the purpose of anticipating a defense is improper and an objection thereto is properly sustained.\n3. Cross-examination\u2014extent of. A more liberal rule prevails in the cross-examination of a witness than in his direct examination and a question which may be improper upon direct may .nevertheless be proper upon cross.\n' 4. Evidence\u2014when inducement is competent. Where certain evidence is sought to be introduced which is material to the issue, other evidence, incidental thereto and which is necessary in order properly to explain such material evidence, is, likewise, competent.\n5. \u201cIf you believe from the evidence \"\u2014what equivalent to. The expression, \u201c If you find that the evidence bearing upon plaintiff\u2019s case,\u201d held, equivalent to \u201c If you believe from the evidence.\u201d\nAction of assumpsit. Appeal from the Circuit Court of Tazewell County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the November term, 1903.\nAffirmed.\nOpinion filed June 28, 1904.\nW. E. Curran, for appellant.\nJesse Black, Jr., for appellee."
  },
  "file_name": "0531-01",
  "first_page_order": 547,
  "last_page_order": 551
}