#### James M. Sells v. The Sandwich Manufacturing Company.

Practice — Instructions—Remittitur.

1. Where the jury could not have been misled, although the instructions were somewhat inconsistent, the judgment will not be reversed on appeal.

2. Where the judgment improperly includes attorney fees, this court will permit the appellee to remit the amount of such fees.

[Opinion filed May 21, 1886.]

Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.

Messrs. Tipton & Beaver, for appellant.

*57The judgment is for more than the demand on the back of the summons issued by the Justice of the Peace, with the accrued interest on the same. A plaintiff can not recover more than he claims, and if he takes judgment for more it is error. Brown v. Phillips, 6 Ill. App. 250 ; T., P. & W. R. R. Co. v. Pence, 71 Ill. 274 ; Bidgely v. Heald, 4 Gil. 64; Dowling v. Stewart, 3 Scam. 195 ; Ellis v. Snider, Breese, 336.

In the note or agreement sued on there is a provision for the allowance of $10 attorney’s fee. It was error to include this sum in the verdict and judgment. Byers v. Nat. Bank, 85 Ill. 423 ; Dowty v. Holtz, 85 Ill. 525; Easter v. Boyd, 79 Ill. 355 ; Clark v. Morgan, 13 Ill. App. 597.

Mr. C. D. Myers, for appellee.

Per Curiam.

Appellee brought this suit béfore a Justice of the Peace on the last of two notes given by appellant for a harvester and binder sold to him, which was “ to be made to do good work or to be replaced by a new machine.” On appeal the plaintiff got a verdict and judgment for $175.48, damages.

It appeai-s that a new machine was given. If it did good work, or was absolutely accepted, the defendant was liable. On both these points the evidence was conflicting, and the instructions were not strictly consistent; but on the whole we think the jury could not have been misled, and perceive no sufficient reason for disturbing their finding for plaintiff.

, The amount, however, improperly included ten dollars for an attorney fee (for which the note provided if not paid when due and suit should be brought thereon) which appellee here remitted by leave of this court. The judgment will be affirmed for $165.48.

Judgment affirmed,.