Crooks v. Hibbard, Spencer, Bartlett & Co.

58 Ill. App. 568, 1895 Ill. App. LEXIS 90

• Court: Appellate Court of Illinois
• Decided: May 16, 1895
• Status: Published

Opinion

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

Appellee brought suit against appellants and recovered judgment for $1,000; from this appellants have appealed.

Appellants insist that the court below erred in these particulars :

1st. In refusing to find for the appellants upon the first and second amended counts of appellee’s declaration because of the variance between each of them and the proof.

2d. In refusing to find for appellants upon the common counts, since the evidence did not make a case under them.

3d. In refusing to find for appellants because of the insufficiency of appellee’s proof in not showing an offer by appellee to arbitrate.

4th. In awarding excessive damages to appellee.

As to the error first charged it is sufficient to say that no variance was pointed out, and an opportunity given to amend against it. McCormick v. Durand, 37 Ill. App. 167, 168; affirmed, 136 Ill. 178; L. S. & M. S. Co. v. Ward, 33 Ill. 511, 516, 517.

If the court erred in not finding for appellants upon the common counts, such error is not shown to have been of any consequence. There was no agreement to arbitrate that constituted any defense to this suit.

The appellants’ motion for a new trial did not set forth that the damages awarded were excessive. We have examined the evidence and see no sufficient reason for thinking the judgment to be opposed to the law and the evidence.

The judgment of the Circuit Court is affirmed.