Westphal v. Sipe

Mr. Justice Waterman delivered the opinion of the Court. The contract under consideration was one of sale, the' vendor to be paid weekly the amount received by the box, and in any event at the rate of two dollars a week until the sum of $250 was paid, the entire price to become due upon the failure of the vendee to remit two dollars per week. Ho option was reserved to appellees, save in the contingency that the two dollars per week was not remitted; and the option then was to refund one-half the money appellees had received, and take back the box, instead of treating the entire amount unpaid as then due and payable. Each party acquired definite rights under the contract; it was therefore mutual. Appellees have not exercised their option to take back the box, and the $250, by reason of the failure of appellant to pay the two dollars per week, has become due. The box has been sold to appellant for $250, and the price is due; the box belongs to the vendee. Norton v. Hummer, 22 Ill. App. 194; Murch v. Wright, 46 Ill. 487; Chickering v. Bastress, 130 Ill. 206; Lucas v. Campbell, 88 Ill. 447; First Nat. Bank v. Schween, 127 Ill. 573; Waters v. Cox, 2 Ill. App. 129; St. Louis I. & M. Works v. Kimball, 53 Ill. App. 636. Appellees sue as co-partners doing business under the name of the Automatic Music Company. The character in which plaintiffs brought suit was not disputed. Upon the trial appellant tendered to them the receipts of the box, and they were by appellees accepted. Appellant also on the trial tendered to appellees the box. After such recognition of appellees as the parties with whom the contract was made by him, we think it is now too late for him to object that they are not the parties who made the contract sued on, no such objection having been made in the court below. Richelieu Hotel Co. v. Military Encampment Co., 140 Ill. 248-259. The verdict as recorded is as follows: “We, the jury, find the issue for the plaintiff and assess its damages at the sum of two hundred and thirty-five dollars and thirty-five cents.” In the bill of exceptions the verdict appears as follows : “We, the jury, find the issue for plaintiff and assess the plaintiff’s damages in. the sum of two hundred and thirty-five and 35-100 dollars ($235.35).” When the recitals of the record made up by the clerk of the court, and the bill of exceptions disagree, the latter will prevail. Hirth v. Lynch, 96 Ill. 408. As to irregular and informal verdicts, the rule is that if by looking into the record the verdict can be seen to be responsive, it will be sustained. Daft v. Drew et al., 40 Ill. App. 266; City of Pekin v. Winkle, 77 Ill. 56; Hartford F. Ins. Co. v. Van Duzor, 49 Ill. 489; Wiggins v. City of Chicago, 68 Ill. 372; Ill. Cent. R. R. Co. v. Beardon, 157 Ill. 372. The judgment of the . Circuit Court is affirmed.