Indianapolis, Bloomington & Western Railway Co. v. Rhodes

Citations

• 76 Ill. 285

Syllabus

<p>•' 1. Error—when record must show an exception. Where the record fails to show that any exception was taken to’the admission or exclusion of testimony, or to the giving of instructions, no error can be assigned in respect thereto.</p> <p>, 2. Same—must be assigned. When the refusal of instructions is not assigned for error, they will not be considered by this, court, although the record shows their refusal and an exception taken to such refusal.</p> <p>3. New trial. Under an assignment of error for refusing a motion for a new trial, the question whether the evidence is sufficient to sustain the verdict is properly raised.</p> <p>4. Pleading—when consideration must be stated.’ In declaring upon .a contract not under seal, and not being a bill of exchange or promissory note, implying a Consideration, it is necessary to expressly state the particular consideration upon which it is founded.</p> <p>5. Consideration—must be proved as laid. In a case where it is necessary to state a consideration in the declaration, if it be not proved on the trial as alleged, the variance will be fatal, if taken advantage bf on the trial; and if no legally sufficient consideration be shown by the evidence, a necessary element of the cause of action will be wanting, and no recovery can be had.</p> <p>6. Same—if not shown a recovery can not be upheld. In a suit against a railway company, for a breach of a simple contract to make culverts and fences along its right of way, the declaration alleged two considerations : a waiver by plaintiff of a right of appeal from the assessment of damages for right of way, and plaintiff’s agreement to convey the right of way by deed. The plaintiff testified that he did not agree to give a deed, and that nothing was said about one, and the proof failed to show that anything was said about waiving any right of appeal, and no proceedings were shown to condemn the land, so as to show there was any right of appeal: Held, that no recovery could be had upon the