Clause v. Bullock Printing Press Co. , 20 Ill. App. 113 ( 1886 )

Moran, J.

The first error assigned by appellant is the refusal of the court to allow the plea of set-off to be filed on Mot. 7, 1885, when the case was upon the trial call. When pleas are not filed in apt time, a motion for leave to file on the eve of trial is addressed to the discretion of the court, and unless the circumstances are such as to show an abuse of such discretion, the ruling on such motion will not be reviewed by this court.

Furthermore, in this case, appellant did not, in the points in writing specifying the grounds of his motion for a new trial, mention this as one. He will be held, therefore, to have waived it, and will be confined here to the reasons for new trial specified in the court below. O., O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104.

The second error alleged is upon the ruling of the court, on the motion for leave to file as a plea of set-off, the consolidated common counts, at the trial after the nolle by plaintiff as to the counts on the Boston Advertiser and Philadelphia Press orders.

It appeared from the evidence that the whole amount claimed by appellant, on account of work on the Boston Advertiser cylinder, was allowed and paid to appellant before the suits were brought. It further appears that appellee notified appellant, while he was building the Philadelphia machine and before it was completed, that it would not take the machine, alleging improper mechanism in its construction, and that appellant had notified appellee that he should complete the machine and test it, and hold it subject to appePee’s order. It is apparent that appellant’s claim against appellee, so far as it related to the Philadelphia Press machine, was for damages for not receiving and paying for the machine when completed, according to contract, and not for any amount due on account between the parties, and such a claim not being provable under the consolidated common counts, which appellant sought to file as a plea of set-off, a refusal to allow such plea to be filed worked no injury to appellant.

Damages for breach, of an executory contract can not be recovered under the common counts. A special plea setting out the contract and the breach was necessary, and such a plea appellant did not offer to file. Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239.

It is contended that the court erred in refusing a continuance on appellant’s motion, upon appellee changing the issues by dismissing the counts from his declaration.

Even treating such dismissal as an amendment of the declaration, it would not work a continuance of the case, uffiess appellant filed an affidavit bringing himself within the terms of Sec. 26 of Chap. 110 R. S., providing for continuance in case of amendment. C. & P. R. Co. v. Stein, 75 Ill. 41; Mills v. Executors, etc., 76 Ill. 381.

The affidavit filed by plaintiff was not a compliance with the requirements of the statute, and the refusal of the court to grant the continuance, was, therefore, not error. Neither was it erroneous for the court to refuse to allow, under the general issue, evidence of sums claimed to be due appellant from appellee, as damages for breach of contract, to apply as payment on the notes, as the contracts were not in any way the consideration of the notes. The notes were shown to have been given for money advanced, and sums due on account between the Bullock Printing Press Company and appellant should, by the terms of the notes, be indorsed thereon, and could undoubtedly have been proved under the general issue-But “ amounts coming due on account” do not include unliquidated damages for breach of contract.

Neither could appellant prove such damages by way of recoupment, as they did not grow out of the same transaction. Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 Ill. 115.

Counsel for appellant contends that the court erred in giving and modifying instructions. The criticism relates wholly to instructions on the question of damages arising under the Boston Herald contract and as to the construction of that contract.

The jury found in favor of appellant and against appellee upon the claim for damages on that contract, and only found for appellant for the amount of the notes and interest.

Therefore, if it be admitted that the court below erred in the instructions, as the appellant claims, still such error worked him no injury. It is only of error that affects one injuriously that he can he heard to complain. Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Tuttle v. Robinson, 78 Ill. 332.

No error appearing which will authorize a reversal, the judgment of the superior court must be affirmed.

Judgment affirmed.