Zapel v. Ennis

104 Ill. App. 175, 1902 Ill. App. LEXIS 781

Opinion

Mr. Presiding Justice Waterman

delivered the opinion of the court.

When, under' a special contract, nothing remains to be done but to pay that due under the agreement, a recovery may be had under the common count for work and labor. Shepard v. Mills, 70 Ill. App. 72.

When a special contract is at an end, either by its terms or by the subsequent consent of the parties, or by the unjustifiable conduct of the defendant, indebitatus assumpsit will lie. Hill v. Green, 4 Pickering, 114; Munroe v. Perkins, 9 Pickering, 298; Goodrich v. Lafflin, 1 Pickering, 57; Moulton v. Trask, 9 Metcalf, 577; White v. Oliver, 36 Maine, 92; Bullor’s Nisi Prius, 139; 2 Chitty on Contracts, 831, note M.

We do not think that the following instruction should, as it was, have been given.

“ The court instructs you that in passing upon the testimony of the witnesses for the defendant, you have a right to take into consideration any interest which such witness, or any of them, have or feel in the result of this suit, if any is proven, growing out of their relation to the defendant, or otherwise, and to give to the testimony of such witness only such weight as you think it entitled to, under all the circumstances proven on the trial.”

Instructions of this kind, singling out the witnesses of one party, are improper. The evidence is, however, such that we do not think that for such error the judgment should be reversed.

The objections urged to other instructions given for the plaintiff we do not regard as well taken in this case.

The judgment of the Circuit Court is affirmed.