F. H. Hill Co. v. Sommer

Mr. Justice Gary delivebed the opinion oe the Coubt. This is a little case tried by the court without a jury, in which it appeared by the testimony on both sides, that some years since, the appellee furnished to the appellant, to be sold on commission, some goods, of which the appellant can give no account. The appellee had often called for the goods, or payment, as he testified; but only once, as was the testimony on the part of the appellant, did he call at all. fThe appellee being on the witness stand, the bill of exceptions shows as follows : “Q. What was the merchandise, and what the amount of your bill ? A. I can not say, but I have my book here. It will show. Q. Is that the book of original entry ? A. It is. Q. Were the entries therein made by yourself? A. They were at the time I delivered these goods, on May 30, 1888.” The appellant excepted “ to the introduction of said book in evidence because the foundation is not properly laid for its introduction.” The fair meaning of the testimony of the appellee was that he could not remember all about the goods, but that the account was truly entered by him at the time of the transaction. The book was properly admitted upon common law principles, without reference to any statute. Hayden v. Iloxie, 27 111. App. 533. The case was begun before a justice, and on appeal the action is whatever the evidence fits. Chi., R. I. & P. Ry. v. Town of Calumet, 50 Ill. App. 555. That the appellant, being unable to give any account of the goods when called to account for them, was liable for them, can not be questioned. The cause of action did not accrue upon the delivery of the goods, but on the failure to account, and the statute of limitations did not begin to run until then. Angell, Lim., Sec. 179. The motion for a new trial did not raise the question whether the amount of the recovery was excessive. Moore v. Schooff, 51 Ill. App. 76. The judgment is affirmed.