Chicago & Western Indiana Railroad v. Thomlinson

Appellate Court of Illinois

Chicago & Western Indiana Railroad v. Thomlinson

33 Ill. App. 388, 1889 Ill. App. LEXIS 407

CourtAppellate Court of Illinois

DecidedJuly 2, 1889

StatusPublished

Cited by1 cases

This text of 33 Ill. App. 388 (Chicago & Western Indiana Railroad v. Thomlinson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chicago & Western Indiana Railroad v. Thomlinson, 33 Ill. App. 388, 1889 Ill. App. LEXIS 407 (Ill. Ct. App. 1889).

Pincite

Opinion

Gary, J.

The appellees, by contract with the appellant, furnished the cut stone for the passenger depot of the appellant, at Polk street. The contract was for the stone “agreeable to drawings and specifications bearing even date herewith, drawn and prepared by Cyrus L. W. Eidlitz, architect, and signed by the contracting parties.” “Signed by contracting parties” is ambiguous. “Contracting parties” is synonymous with “ contractors,” and if this word had been used, the common understanding would have been that only the appellees were to sign.

There was a drawing stamped with the name, profession and address of the architect, and signed by the appellees, showing the tower of the depot, the cut stone for which is now claimed as extra. The testimony agrees that that drawing was signed by the appellees in IsTew York some weeks later than it bears date, but there is a dispute whether the appellees had had an opportunity to take into account the stone shown by it, in making their calculations, and whether they were misled, by mistake or design of the architect, to suppose that they had figured upon the stone shown by it. When the time for furnishing that stone came the appellees claimed that it would be extra. The appellants denied it.

Without going into detail, it may be said that the most favorable aspect of the case for the appellees is, that they were entitled to go to the jury upon the questions whether the architect was so far agent of the appellant that, if he misled the appellees, the appellant was chargeable with the consequences; whether, in fact, he did mislead them, and whether, if the appellees were not bound under their contract to furnish the stone in question, there was any request, express or implied, by the appellant to the appellees to furnish it.

And upon all these questions the burden of proof would be upon the appellees, with certainly a good deal of doubt as to their success. Now, upon this state of the case, the court instructed the jury that the burden of proof was upon the appellants to show that the stone was furnished under the contract.

For this error the judgment is reversed, without going over the many questions made by the parties.

Reversed cmd remcmded,

Free access — add to your briefcase to read the full text and ask questions with AI

Gary, J.

The appellees, by contract with the appellant, furnished the cut stone for the passenger depot of the appellant, at Polk street. The contract was for the stone “agreeable to drawings and specifications bearing even date herewith, drawn and prepared by Cyrus L. W. Eidlitz, architect, and signed by the contracting parties.” “Signed by contracting parties” is ambiguous. “Contracting parties” is synonymous with “ contractors,” and if this word had been used, the common understanding would have been that only the appellees were to sign.

There was a drawing stamped with the name, profession and address of the architect, and signed by the appellees, showing the tower of the depot, the cut stone for which is now claimed as extra. The testimony agrees that that drawing was signed by the appellees in IsTew York some weeks later than it bears date, but there is a dispute whether the appellees had had an opportunity to take into account the stone shown by it, in making their calculations, and whether they were misled, by mistake or design of the architect, to suppose that they had figured upon the stone shown by it. When the time for furnishing that stone came the appellees claimed that it would be extra. The appellants denied it.

Without going into detail, it may be said that the most favorable aspect of the case for the appellees is, that they were entitled to go to the jury upon the questions whether the architect was so far agent of the appellant that, if he misled the appellees, the appellant was chargeable with the consequences; whether, in fact, he did mislead them, and whether, if the appellees were not bound under their contract to furnish the stone in question, there was any request, express or implied, by the appellant to the appellees to furnish it.

And upon all these questions the burden of proof would be upon the appellees, with certainly a good deal of doubt as to their success. Now, upon this state of the case, the court instructed the jury that the burden of proof was upon the appellants to show that the stone was furnished under the contract.

For this error the judgment is reversed, without going over the many questions made by the parties.

Reversed cmd remcmded,

Cite This Page — Counsel Stack

Bluebook (online)

33 Ill. App. 388, 1889 Ill. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-western-indiana-railroad-v-thomlinson-illappct-1889.

Opinion

Related

Cite This Page — Counsel Stack