Borwell v. Schultz , 50 Ill. App. 161 ( 1893 )

Opinion of the Court,

Shepard, J.

This is an appeal from a judgment in favor of appellee for mechanical work done for the appellant in the matter of certain store fixtures, under a contract between the parties, and for certain work outside of the contract.

The suit was originally begun in a justice of the peace court, and from a judgment there in favor of appellee, was appealed to the Circuit Court, where judgment was again recovered by the appellee.

The controversy was one of fact, as to whether the work done was performed in compliance with the contract, and as to the value of the work not included in the contract.

The evidence was conflicting, and it was the peculiar province of the jury to determine where the weight of evidence lay. We are unable to say from the record that the jury did not find correctly, and under such circumstances, the verdict should not be disturbed.

K"o instructions were given to the jury in behalf of appellee. Those that were given in behalf of the appellant, and by the court on its own motion, presented the issues to the jury with marked clearness, and quite as favorably to the appellant as he was entitled to.

The refusal of the court to give the fourth instruction offered by appellant with reference to a rescission of the contract, was entirely proper.

The fact that appellee procured Jorgensen, another mechanic, to make the cases, and that appellant, by direction of appellee, ivent to see the cases while they were being made, and talked with Jorgensen about them, and paid Jorgensen for them, at the request of appellee, and that Jorgensen did other work for appellant, does not even tend to establish a rescission of the contract between Schultz and Borwell, by mutual consent, or otherwise. Hence the instruction was entirely inapplicable, and was properly refused.

We discover no error of consequence in the record, and the judgment of the Circuit Court will therefore be affirmed.