Harrison v. Trickett

Mr. Presiding Justice Waterman delivered the opinion oe the Court. The court, this being an action commenced by attachment, against the objection of the defendant, permitted the plaintiff to introduce in evidence a letter containing an offer of compromise sent by appellant to appellee. This was error. Barker v. Bushnell, 95 Ill. 220. The plaintiff should not have been permitted to testify in chief to his conclusion that the defendant did not object to the bill he presented to her. He could properly have stated what she did or said when the bill was presented. At the instance of the plaintiff the court gave the jury the following instruction: “ 3. The jury is further instructed that if they shall find from the evidence in the case that the completion of the work was delayed by the ordering of extra work or alterations, no claim to penalties can be recovered.” The mere ordering of extra work which it would not take more than a day to do, would not absolve a builder from the consequences of a delay of six weeks in completing work he had undertaken. For such delay as was reason able, that is, for such time as ivas reasonably required in which to do the extra work, and such delay as on account thereof was caused, appellee was, by the extra work, excused. Emden on Building Leases and Contracts, 167; Thomhill v. Neats, 8 Common Bench, New Series, 831; Jones v. St. Johns College, Law Rep. Ch. Queen’s Bench, 115; Oakden v. Pike, 34 Law Journal Chy. 620; Holner v. Guppy, 3 Meeson & Welsby, 387. We do not think that under the evidence adduced in this case the provision for a forfeiture of fifty dollars a day should, in an instruction of this nature, have been characterized as a penalty. The judgment of the Superior Court is reversed and the cause remanded.