Harnit v. Thompson , 46 Ill. 460 ( 1868 )

Mr. Justice Lawrence

delivered the opinion of the Court:

We are inclined to the opinion, that the verdict in this case, is against the evidence, though probably not so clearly so as to justify a reversal on that ground alone. But the fourth instruction, given for the defendant, to the effect that the widow may, in all cases, retain possession of the house in which her husband usually dwelt, next before his death, was wholly irrelevant, and tended to mislead the jury. There was no pretense that the defendant, Henry H. Atwood, was in possession, under the widow of Allaback, or acting by her authority, or that there was any connection between her and the alleged trespass. Yet we can only explain the verdict by supposing that the jury imagined, from this instruction, if Mrs. Allaback was entitled to the possession of the house, the plaintiff was not entitled to damages for its removal. Such, however, was not the case. The plaintiff was in possession by his tenant, and if he recovers damages, and the representatives of Allaback shall hereafter claim a right to complete the payment on their contract of purchase, the equities between the parties, will be adjusted, and any damages recovered in this proceeding, taken into the account.

The fifth instruction for the defendant, was also irrelevant, and should not have been given. The judgment must be reversed and the cause remanded.

Judgment reversed.