Upton v. The Elite News

70 Ill. App. 108, 1897 Ill. App. LEXIS 453

• Court: Appellate Court of Illinois
• Decided: May 6, 1897
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The appellee sued for the compensation due to it for the performance by it of a contract, as follows :

Office of the Elite Hews,

317 Eookery Bldg., Chicago.

Chicago, March 9, 1893.

C. M. Upton, Monon Bldg., City.

Dear Sir : In reference to the matter of advertising in the ‘ Elite,’ in case you accept our offer for one column one year for seven hundred forty-eight ($748) dollars net, placed next reading matter, we will also publish ■ three illustrated articles to occupy, not more than a full page each and in different issues of the paper, without charge, payable one-half in books handled by O. M. Upton, balance in monthly payments.

Elite News Go.,

H. A. Pierce, Manager.

Accepted.

C. M. Upton.”

We will not repeat the evidence, which shows that the appellee fully performed, except as to “ illustrated articles,” from which it was excused by the neglect of the appellant to furnish copy, but by which the appellee saved ten dollars of expense.

The appellee has recovered seven hundred and twenty-eight dollars, which is wrong, because the appellee never selected or designated the books it would take, and the appellant could not select for it. Woods v. Dial, 12 Ill. 72. The half payable in money, less half the expense saved, the appellee was entitled to recover, but no more.

That amount is $369, to which, if the appellee will, within ten days after this opinion is filed, remit, the judgment will be affirmed for that sum; otherwise the judgment will be reversed and the cause remanded.

In either case, the appellant recovers his costs here.