Ware v. Gilmore

Citations

• 49 Ill. 278

Syllabus

<p>1. Error—will not always reverse. This court will not disturb the judgment of the court below, for an error committed which was afterwards corrected, no injury having resulted to the party complaining.</p> <p>2. It is only in cases where errors are committed to the prejudice of the party seeking a reversal, that this court will interfere.</p> <p>3. Contracts—performance. W made a written agreement with G, whereby he acknowledged himself indebted to G for the sum of $10,026.28, the purchase price of 229 head of cattle, and it was agreed, that W should ship to Chicago, without delay, 109 head, and sell them for the highest price, and after deducting expenses, apply the balance upon the debt to the extent of $6,000,' and secure the balance of the purchase money. The cattle thus shipped were to be under the control of one H, subject to W’s direction. Under this agreement, 107 head were shipped, but W refused to allow H to sell them at the price offered, on their arrival. The market declined, and on the third day, G, through one M, purchased them from H for himself, and after paying expenses, gave to H G’s receipt for the balance of the proceeds on the sale. The next day, W, learning of the transaction, replevied the cattle, and placed them in the hands of A, who sold them for his use: Held, in an action of covenant brought by G against W,</p> <p>he having failed to pay over to G the proceeds of such sale, or secure the debt, that G was entitled to recover. That it was immaterial whether the act of G, in procuring the sale to be made to M, was proper or not,' as such act in no wise released W from the performance of his covenant. Having sold the cattle, he was bound to pay over the proceeds to G, and secure the balance of the debt, according to his agreement.</p> <p>4. Instructions—need not be repeated. It is not error to refuse an instruction which, in substance, is but a mere repetition of instructions which were given. Instructions need not be repeated.</p> <p>8. S