{
  "id": 3026439,
  "name": "John Mosley, Appellant, v. William Hundhausen, Appellee",
  "name_abbreviation": "Mosley v. Hundhausen",
  "decision_date": "1918-07-25",
  "docket_number": "Gen. No. 6,559",
  "first_page": "627",
  "last_page": "629",
  "citations": [
    {
      "type": "official",
      "cite": "211 Ill. App. 627"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T20:44:38.810297+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John Mosley, Appellant, v. William Hundhausen, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Carnes\ndelivered the opinion of the court.\n2. Action, \u00a7 32 \u2014 what is distinction between action in contract and in tort. An action in contract is for the breach of a duty arising out of a contract express or implied, while an action of tort is for the breach of a duty imposed by law.\n3. Action, \u00a7 35* \u2014 when action construed as in contract. If it is not clear to which class an action belongs, whether contract or tort, the action will ordinarily be considered as one in contract.\n4. Justices oe the peace, \u00a7 269* \u2014 when counterclaim properly interposed. The counterclaim of the defendant, a subcontractor, for hauling gravel at the request of the contractor, interposed before the trial in the County Court, after appeal from the justice court, of an action by the contractor for damages for injury to the building due to water running into the basement because of the failure of defendant to remove gravel from the premises, and for extra expense for labor and deprival of use of the premises, was properly presented and litigated under section 19 of the Justices and Constables Act (J. & A. 1f 6915), requiring a statement of set-off in writing before trial, even though plaintiff\u2019s action may have been in tort, where plaintiff did not object to the counterclaim when filed, did not object on that ground to the evidence in support of it, but at the close of all the evidence made a motion that the \u201cevidence of defendant be stricken from the record, as a set-off, with reference to the payment\u201d for the gravel, which motion was overruled, and in his bill of exceptions entitled the cause as \u201cAssumpsit,\u201d and in his brief recited the acts of defendant upon which he based his claim and said that they were in violation of defendant\u2019s contract.",
        "type": "majority",
        "author": "Mr. Justice Carnes"
      }
    ],
    "attorneys": [
      "Sucher & Moore, for appellant.",
      "Scholes & Pratt, for appellee."
    ],
    "corrections": "",
    "head_matter": "John Mosley, Appellant, v. William Hundhausen, Appellee.\nGen. No. 6,559.\n(Not to he reported in full.)\nAppeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1918.\nAffirmed.\nOpinion filed July 25, 1918.\nStatement of the Case.\nAction by John Mosley, a contractor, plaintiff, against William Hundhausen, a subcontractor, defendant, before a justice of the peace. From a judgment for plaintiff for $14, defendant appealed to the County Court. Before the trial in the County Court plaintiff filed a written statement of his. demand as follows:\n\u201cFour days work at $2.00 per day $ 8.00\n\u201cDamage by water 10.00\n\u201cLoss of rent by delaying work 75.00\n$93.00\u201d\nAnd at the same time defendant filed a statement of his set-off as follows:\n\u201cTo hauling gravel for said Mosley at his\nrequest 32 00/100\u201d\nAbstract of the Decision.\n1. Contracts, \u00a7 389 - \u2014 what are questions for jury in action by contractor against subcontractor for damages for failure to remove gravel. In an action hy a contractor against a subcontractor to recover damages for injury by water to the premises on which plaintiff was working because of the failure of defendant to remove gravel and for extra expense for labor and deprival of use of the premises, the evidence being conflicting, questions for the jury were presented as to the terms of the contract and whether substantial damages resulted from leaving the gravel on the premises more than three or four days.\nPlaintiff was engaged in repairing a dwelling house and- contracted with defendant to do certain cement work on the premises. It was defendant\u2019s duty under the contract to haul gravel upon the premises to be used in the work, and he did haul several loads there, but plaintiff became offended because it was hauled there \u00e1t the particular time and declared the contract rescinded and ordered defendant to remove the gravel, which he did. The testimony was conflicting as to other provisions of the contract, plaintiff claiming that it was agreed that the cement work should not be commenced until the plasterers were out of the way, and because defendant violated this provision of the contract it was declared off and defendant agreed to- remove the gravel in three or four days. Plaintiff denied this and said that he was to begin work at once, and while it was true that the contract was declared off and he was to remove the gravel, he was to receive pay therefor. Plaintiff\u2019s evidence tended to show that the gravel so left on the premises caused water to run into the basement injuring the building, delaying its completion and putting him to extra expense for labor and depriving him of the use of the premises for some time. A judgment was rendered for $32 in defendant\u2019s favor on the counterclaim, from which judgment plaintiff appeals.\nSucher & Moore, for appellant.\nScholes & Pratt, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0627-01",
  "first_page_order": 681,
  "last_page_order": 683
}