Dwyer v. Duquid

70 Ill. 307

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court :

By the terms of the contract between the parties in this case, nothing was said about the time when payment was to be made. In such cases, the law implies that payment is to be made on delivery of the property. Smith v. Gillett, 50 Ill. 290; Metz v. Albrecht, 52 id. 492. If, therefore, appellant refused to pay for the coal after delivery, and when payment was demanded by appellees, he was in default, and if appellees, prior to appellant’s default, had complied with their part of the contract, they were authorized to treat the contract as abandoned, and might recover in assumpsit, on the common counts, for the amount of coal they had delivered, according to the contract price. Evans v. Chicago and Rock Island Railroad Company, 26 Ill. 189.

The principal controversy turns on the preponderance of evidence, and, as is quite frequent in such cases, each party asserts, with great apparent confidence, that the preponderance is with him. After carefully examining the evidence in the record, we are not disposed to disturb the finding of the court below. The evidence is conflicting, and so nearly balanced that we do not think the ends of justice require that we should remand the case for a new trial.

The judgment of the court below is affirmed.

Judgment affirmed.