McPherson v. Nelson

Citations

• 44 Ill. 124

Syllabus

<p>1. Practice—bill of exceptions should contain all of the evidence to be examined. Where the bill of exceptions fails to state that it contains all of the evidence, the court will not examine to see whether that which appears in the record does sustain the verdict. In such a case it will be presumed that the finding is correct until it is rebutted by evidence in the record, as the presumption must be indulged that there was other evidence sufficient to warrant the verdict.</p> <p>2. Allegations and pboof. Where the declaration contains no averment of a tender but a readiness and willingness to perform, plaintiff need only show such readiness and willingness to perform. A tender need not be proved.</p> <p>3. Contbact—excuse for not performing. Where a party through his agent purchases grain to be delivered at a future day and he fails to furnish his agent with means to pay for it, and it is proved that the property would not have been received if a tender had been made, and that the grain was ready for delivery under the agreement and offered to be delivered, and it was refused, then there was a right of recovery. With such evidence before the jury a judgment would not be reversed on account of instructions unless they were clearly erroneous and must have misled the jury.</p> <p>4. Rehearing in the Supreme Court. Where a party brings a record to this court, assigns error thereon, and submits the cause for decision upon the transcript as it then stands, a rehearing will not be granted at his instance, after the cause is tried and a judgment rendered, upon the ground of an alleged mistake committed by the clerk below in making the transcript of the record.* </p>