Lake Erie & W. R. R. v. Otto

65 Ill. App. 36, 1895 Ill. App. LEXIS 1027

• Court: Appellate Court of Illinois
• Decided: May 16, 1896
• Status: Published

Opinion

Mr. Presiding Justice Pleasants

delivered the opinion of the Court.

Case against appellant before a justice of the peace for damages by the killing of two pigs of appellee that got on its track through a defective fence. A tender made was rejected and fifty cents more recovered on the trial. In the Circuit Court on appeal a jury returned a verdict for the plaintiff for $34—being $9 for the damages, exceeding the amount tendered by $2, and $25 for attorney’s fees.

Witnesses, like the parties, differed about the value of the pigs. Hone testified to the “ market ” value, or that there was any market value for such pigs at the time they were killed. Their estimates were of the reasonable value, and their reasons were given; of the force of which the jury was to judge. ' Their finding was for about the average amount sworn to.

But one witness was sworn as to the attorney’s fees, and we understand he fixed the amount found as the reasonable fee for services on the trials in the two courts. It does not raise the question of the right under the statute to recover for services preceding the actual commencement of the suit, and we intimate no opinion upon it.

The court modified one and refused another instruction asked upon the supposition that the tender was sufficient. Had they been given as asked they would have availed nothing, since the finding was that it was not sufficient. The judgment will be affirmed.