De Wolf v. McGinnis

Citations

• 106 Ill. 553
• 1883 Ill. LEXIS 208

Syllabus

<p>1. Evidence—on question of damages for not making amd delivering machines. The lessees of a machine shop and foundry agreed with the lessor to build for him as many “purifiers” as he might order, for which they were to be allowed twenty per cent profit on the cost of building and shipping, to be deducted from the rent, monthly, and the lessor ordered twelve of them, which the lessees refused - to deliver upon disagreement as to their price. The lessor sued in assumpsit on the contract for the lease for the rent due, and for damages for injury to the property, and for a failure to deliver the twelve machines. On the trial the court allowed the plaintiff to prove that he had sold a machine to a Mr. Fry, and on the first trip had sold nineteen, etc., which was objected to, as seeking to recover for loss of profits on the sales: Held, that as damages were not claimed for profits on these sales, the evidence was proper for the purpose of showing there was a demand for the machines, and that there was a market for the goods if they could have been obtained.</p> <p>2. Contract—to deliver machines, evidence on measure of damages. Where a defendant has agreed to make certain machines for the plaintiff at twenty per cent profit on the cost of making and shipping, which he fails to do, in order for the plaintiff to establish damages for the non-delivery of the machines ordered under the contract it is incumbent on the plaintiff to prove the amount he agreed to pay for them, and also what they were worth in the market at the time they were to be delivered.</p> <p>3. Pleading over—after demurrer—waiver. Where the defendant, after his demurrer to the declaration is overruled, pleads over, he will waive his right to move in arrest of judgment for the insufficiency of the declaration.</p>