Springdale Cemetery Ass'n v. Smith , 24 Ill. 480 ( 1860 )

Walker, J.

There is no principle, more elementary and better recognized than that, when a price is fixed between the parties to a contract, for the purchase of property, or the performance of labor, it must be adopted as the rule for the recovery. In rendering their verdict the jury must be governed by it, as it is the contract of the parties, and neither the court nor jury have any power to alter it. In this case, in several of the instructions given for the appellee, this rule is either not recognized, or is in terms violated. The evidence seems to show, that the appellees were to furnish the materials and complete the structure, for five hundred and twenty-five dollars. The fifth instruction tells the jury, that the plaintiffs were entitled to recover unless the defendant had proved that the work was unskillfully and carelessly performed, or the materials were not suitable. This instruction fails to tell the jury whether the recovery should be based upon the contract price, or the value of the labor and materials. This instruction, if taken alone, may not have misled the jury, but it would certainly have been better that they should also have been told that if the labor and materials were furnished under a contract, the contract price must govern. But the sixth instruction in terms informs the jury, that if they believe, from the evidence, that the plaintiffs built the vault with good materials and in a workmanlike manner, they should find for the plaintiffs the value of such materials. This is not the law, and may have misled the jury, unless they disregarded the rule laid down by the court for their action. This instruction was manifestly wrong, and should not have been given. The fourteenth instruction asserts the same rule as the fifth, and nearly in the same terms, and the seventeenth fixes the value of the labor and materials as the measure of damages, as did the sixth, and it, for the same reason, was improper, and should not have been given.

Nor are these instructions aided by the qualifications to the eleventh and thirteenth. They were not given in the same connection, nor do they in any manner refer to the others. And they were not so framed that the jury could see that they must be taken and considered together, and even if they could, they are so framed that they may have been regarded as irreconcilable and repugnant. Nor does the twelfth instruction given for the defendant obviate the difficulty, as from its position, and the connection in which it was given, we are not able to see that the jury necessarily considered it in connection with the plaintiffs’, and properly understood and reconciled it with them.

Whether one instruction qualifies another without reference to it, must depend upon its position in the series, and its connection with the others. If it is apparent, that the two instructions must have been considered together, and have been properly understood by the jury, then their finding should not be disturbed, otherwise a new trial should be granted. When instructions are numerous or prolix in their character, they are of course more apt to mislead the jury unless prepared with great care, than when they are few in number and simple in their structure. In the former case, the court would be more apprehensive that they were calculated to mislead unless carefully qualified, than in the latter, and would more readily set aside a verdict for that reason.

In this case we are of the opinion that the jury may have been misled by the plaintiffs’ instructions, and for that reason the judgment of the court below is reversed, and the cause remanded.

Judgment reversed.