Myers v. Walker

Mr. JustiCE Waleee delivered the opinion of the Court. The application for a change of venue, was based upon an affidavit, that the party feared that he could not obtain a fair trial before the judge then presiding. And whilst the venue was not changed to another circuit, a trial was had before- a different judge against whom there was no complaint. This practically accomplished all that was sought by the application for a change of venue. When the reasons for a change of venue ceased to exist, the necessity and the right to a change of venue also ceased. The party -obtained a trial before another judge, against whom he made no objection, and he has sustained no wrong by a failure to transfer the cause to a different circuit. "We perceive no force in this objection. It is insisted that witness, Kellogg, was incompetent to testify in the case. He was the brother, the administrator and heir of the deceased partner of defendant in error, with whom the matters in dispute in this case originated. It is, however, insisted he was rendered competent by a release executed by himself to defendant in error of all of his interest, as administrator, in the subject-matter of this suit. Did this remove his interest, and restore his competency ? This release would, no doubt, prevent him from recovering from defendant in error any portion of any recovery which might be had in this suit, whether claimed as heir, or as administrator, of the estate of his brother. If the defendant in error, however, was unsuccessful in the suit, he would, undeniably, have the right to pay the costs, out of the assets of the late firm, and on a settlement with the administrator of his deceased partner, he would have a right to a credit for the amount. The fund would thus be diminished to that extent. On a final settlement, the witness would be liable to receive less than if the suit terminated in favor of defendant in error. A failure to recover would, therefore, reduce the fund in the distribution of which the witness has a right to participate. This witness, therefore, had an interest in the recovery by defendant in error to the extent of his liability to account for the costs of this suit. This interest, it seems to us, is as direct as if he were a party to the record as far as the liability for costs is involved. It is more direct than the liability of a security for cost, and yet he is not competent. In neither case is the party liable to have a judgment rendered against them in the suit, but in both they are ultimately liable. Whether plaintiffs in error had money of defendant in error in their hands, unexpended, after deducting all proper credits, was a question for the determination of the jury. We deem it unnecessary to discuss the weight of evidence on this question, as that will be the province of the jury on a future trial of the case. It is urged that tbe court below erred in modifying defendants’ first instruction. But no objection is perceived to the instruction as given. It informed the jury that plaintiff could not recover back money paid out in the purchase of corn for plaintiff, and also the value of the corn thus purchased. If all the money furnished by plaintiff was expended in the purchase of corn, under the contract, and it had been delivered or stored ready for delivery, according to the terms of the contract, then all liability of the defendant ceased. If, however, he had failed to purchase the corn, to the extent of the funds furnished, or had purchased the corn and failed to deliver, or store it, according to the agreement, then he was liable for the portion not purchased or delivered to plaintiff in store, or otherwise. If defendant furnished the full amount of corn, it could make no difference whether it was purchased with the identical, or other money. This instruction does not contravene this principle. The court below modified defendants’ fifth instruction, which is also assigned for error. As it was drawn, and before it was modified, it asserted that as defendants’ receipt for plaintiff’s corn specifies no time within which Walker & Kellogg were to send for the corn, they were bound to remove it in a reasonable time, and if loss resulted from a failure to do so, the plaintiff must sustain the loss, unless defendants were guilty of negligence. The liability of defendants, as bailees, whether the purchase was of corn already in store, or was of corn received in store, as the receipt specifies that it is to be stored and put aboard of boats free of charge, was that they should use ordinary care and diligence in its preservation. The qualification was no doubt introduced to make a distinction, that if the corn was purchased under the agreement of the 13th of February, and had not been delivered so as to pass the title to plaintiff, then the defendants took the risk of any loss which might occur. The receipt states that defendants had received plaintiff’s corn in store, and that corn required no further delivery to pass the title, and defendants, as to it, were only liable for ordinary diligence in its preservation. The sixth instruction asked by defendants asserts that under the receipt for the thirty thousand bushels of corn in store» plaintiff was bound to send for, and remove it in a reasonable time, and if, by failing to do so, the defendants were subjected to additional expense in sacking, hauling and storage, defendants should be allowed a reasonable compensation therefor. No objection is perceived to tbjs instruction, unless it be that it should have been modified so as only to give the right to storage after notice to remove the corn. Defendants were only bound to store the corn for a reasonable time free of charge. And only being bound to deliver it on board of the boats within that time, and if, by failing to so remove, it produced any additional expense, defendants were entitled to compensation for the increased labor and expense of delivery. It was so held in this case when previously in this court. 24 Ill. 133. The principles already announced render a discussion of defendants’ thirteenth instruction unnecessary. Their fourteenth instruction is loo general in its terms. The defendants were only entitled to be allowed for corn delivered to plaintiff in store or otherwise, at the prices authorized to be paid. If they paid higher prices than was authorized, they must sustain the loss of the excess. The defendants’ fifteenth instruction is also too general. If defendants purchased corn for the plaintiff under the contract, and failed to deliver it, or appropriated it to their own use, they had no right to the commission agreed to be paid for its purchase. Plaintiff’s third instruction directed the jury to disregard all charges in defendants’ account, “ except for commissions, sacks, meat, twine, labor on boats, and ice.” Now, there were charges in his account for large quantities of corn, delivered at various times, and there was evidence tending to establish their correctness. These items, by this instruction, were improperly taken from the consideration of the jury. It was the province of the jury, and not the court, to determine what charges were proved. This instruction was therefore improperly given. The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.