Frantz v. Rose

Citations

• 89 Ill. 590

Syllabus

<p>1. Tender—of amount due on contract, and costs in suit before justice of the peace. In an action before a justice of the peace to recover unliquidated damages .for the breach of a contract, express or implied, the defendant has the right, under sec. 61, ch. 79, Rev.-Stat. 1874, to make a tender of the sum due, and costs that have accrued, and if not accepted, deposit the same with the justice, at or before the trial, in bar of any costs subsequently made.</p> <p>2. The object of the law, as it now exists, in relation to tender is, to provide for a tender in all cases of either tort or contract, where a pecuniary compensation is sought to be recovered, and thereby discourage and prevent unnecessary and vexatious litigation, and such object should not be defeated by any narrow and constrained construction of the several enactments.</p> <p>3. Former decisions. Since the cases of Cilley v. Hawkins, 48 Ill. 308, and Gregory v. Wells, 62 id. 232, holding a different rule, the statute has been changed, as above indicated.</p> <p>4. Contract—right to pasture under contract. Where a party, in the early part of the fall, contracts for the privilege of grazing his cattle upon the blue grass pasture of another, and no time is specified for the occupancy of the pasture, or when to take the cattle out, and the owner of the cattle puts them on the pasture in October, and about the first of December takes them out, for the accommodation of the owner of the pasture, for a few days, so that they may not break into his corn field before the corn is gathered, this will not deprive the owner of the cattle of the right to turn them in again, especially where there is no evidence that the pasture had been grazed as closely as is customary at that season of the year.</p> <p>5. Instruction—not supported by evidence, and assuming facts. It is error to give an instruction denying a party’s right, upon an assumed state of facts not shown by the evidence, and calculated to give the jury to u