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our opinion, is not correct. Instruction No. 15 assumes a belief on the part of plaintiff in error that all the persons advancing towards him in a threatening manner were acting in concert with Gravelot. Instructions 22 and 23 leave out the assumption that they were acting in concert. “Concert,” as defined by Webster, means "agreement in a design or plan; union formed by mutual communication of opinions and views." While there may have been some concert of action between Gravelot and the persons who were in the store with him before the shot was fired, there could have been no concert or agreement between him and Maas and Eyerley and the others who advanced from the east and south. If parties were advancing against plaintiff in error in a threatening manner, and under such circumstances as led him to entertain a reasonable fear and an honest belief that his life was in danger or that he was in danger of receiving great bodily harm, it would make no difference whether they were acting in concert with Gravelot upon that particular occasion, or whether they were acting in pursuance of a purpose to carry out the previous threat made by them against plaintiff in error, that they would kill him if he did not take back his wife or give her his property.
In addition to this, plaintiff in error had possession of a revolver when he came into Chebanse on the morning of August 16, 1900. The testimony introduced by him tended to show, that his possession of the revolver at that time was merely accidental, and resulted from a visit to his attorney in reference to the suit that had been brought against him upon the account. On the contrary, it seems to have been the theory of the State that the possession of the revolver, under the circumstances al. ready detailed, indicated previous preparation for an as. sault on the part of plaintiff in error, and an intention on his part to make the attack upon Gravelot. Hence, instruction No. 22 conditioned the right of the jury to find plaintiff in error not guilty upon their finding that
the plaintiff in error placed the revolver in his buggy beyond his reach, in order that he might engage in the fist fight, and that he for the first time formed the intent to use the revolver when he saw other persons than Gravelot advancing upon him. It was for the jury to determine whether his possession of the revolver was the indication of a guilty intent, or whether his possession of it was accidental, and his use of it caused by the threatening attitude of these third parties towards him. This feature of instruction No. 22 is not embodied in any of the other instructions which were given.
On account of the restriction imposed by the trial court upon the cross-examination of the prosecuting witness, as above indicated, and on account of the refusal of that court to give instructions numbered 22 and 23, as set forth in the statement preceding this opinion, the judgment of the circuit court of Kankakee county is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
THE W. H. PURCELL COMPANY
199 1 23 Opinion filed October 24, 1901.
s200 345 1. APPEALS AND ERRORS—what should be embraced in the Appellate Court's recital of fact. In an action for breach of a written contract 192 197
202 1208 the question what the contract required the parties to do is one
202 2384 of law; but what the parties did or omitted to do are questions of fact, which the Appellate Court should recite in its judgment on reversing as a result of its finding the facts different from the trial court and entering judgment without remanding the cause.
2. SAME—what statements in Appellate Court's judgment are not recitals of fact. Statements in the judgment of the Appellate Court that the plaintiff in an action for breach of contract was not in default and that the defendants were in default, are not such findings of the ultimate facts as are required to be recited by section 88 of the Practice act.
APPEAL from the Appellate Court for the First District from the judgement entered by that court under the mandate of the Supreme Court directing the Appellate Court to recite the facts as found by it in its judgment or to remand the cause.
DUPEE, JUDAH, WILLARD & WOLF, for appellant.
P. H. BISHOP, (CHARLES C. BUELL, of counsel,) for appellees.
Mr. JUSTICE Boggs delivered the opinion of the court:
In pursuance of the mandate of this court entered on the former appeal herein (Purcell Co. v. Sage, 189 Ill. 79,) the Appellate Court for the First District has again considered the cause and has adjudged the judgment of the circuit court of Cook county rendered therein should be reversed and that judgment should be entered in the Appellate Court in favor of the appellees here, Sage & Co., in the sum of $60.03 and costs, and incorporated in such judgment the following finding of facts: "That on July 20, 1895, appellants (Sage & Co.) and appellee (the Purcell Company) made the contract of that date set out in the record, and that pursuant thereto appellants (Sage & Co.) furnished appellee (the Purcell Company) the amount of coal shown by the record, on accourt of which there was, on March 10, 1896, a balance due to Sage & Co. of $505.05, less $14.29 advanced by the Purcell Company for transportation charges, and also interest on such balance from March 10, 1896, to date, at five per cent per annum, making a total sum of $576.28; that on March 11, 1896, Sage & Co. were not in default under the terms of said contract, but that the Purcell Company was in default on that day in failing to make payments to appellants pursuant to the terms of said contract.” This is a further appeal prosecuted by the Purcell Company from such latter action of said Appellate Court.
What was said when the case was before us on the former occasion with relation to the issues need not be . repeated. The coal referred to in the findings of fact recited in the judgment of the Appellate Court was delivered in pursuance of the following written agreement:
"CHICAGO, July 20, 1895. "The W. H. Purcell Co., No. 1107 Tacoma Bldg., City:
“GENTLEMEN–We offer you fifteen hundred (1500) tons, more or less, of anthracite pea coal, (screened,) equal in quality to the pea coal recently tested by you at Kensington. This coal to be delivered when required, in car lots, between September 1, 1895, and September 1, 1896, on your malt house tracks at Kensington, Illinois. Price to be $2.75 delivered per net ton 2000 pounds. Payments to be made the 10th of the month following shipments. This proposition contingent upon strikes, accidents, delays of carriers, and other delays beyond our control. Railroad scales weights to govern settlements.
SAGE & Co. Accepted.
For the W. H. Purcell Co."
The Purcell Company contended the true construction of the contract made it incumbent on Sage & Co. to deliver the coal as ordered by the Purcell Company. Sage & Co. contended the contract only demanded that the coal should be delivered as needed for use in the appellant's malting works. This controversy involved the construction of the (italicised) words "when required," employed in the second sentence of the writing which constituted the contract between the parties. Appellant paid for all coal delivered up to the 10th day of February, 1896. The coal for which the judgment was rendered by the Appellate Court was delivered between February 10 and March 10, 1896.
The circuit court, acting on the view it entertained of the legal meaning of the contract and on the facts as found by it, rendered a verdict for the Purcell Company, the defendant in that court. The Appellate Court reversed this judgment and entered judgment in that court for Sage & Co., the plaintiffs in the trial court. This
action of the Appellate Court was the result, in whole or in part, of the finding by the Appellate Court of the facts different from the facts as found by the trial court. Therefore it became the duty of the Appellate Court to recite in the judgment its finding as to every material fact necessary to the maintenance of the judgment entered by it. Hawk v. Chicago, Burlington and Northern Rail. road Co. 138 Ill. 37.
Each of the parties claimed the other was in default in the performance of the contract. What each of them was required to do to comply with the terms of the contract involved the legal construction of the written contract, and is a question of law. What Sage & Co. did which, in the judgment of the Appellate Court, constituted compliance on their part, and what the Purcell Company did or omitted to do which constituted a default on its part, were questions of fact. If the true construction of the contract made it the duty of Sage & Co. to deliver the coal as ordered by the Purcell Company, and they failed to do so, the default was that of Sage & Co. If the legal meaning of the contract is that Sage & Co. should deliver coal, from time to time, as it should be required for use in the malting works of the Purcell Company, and they did so supply the coal, then the default was that of the Purcell Company in failing to make the payment for any coal delivered to it.
In order we should be enabled to determine which of the contracting parties, under the legal meaning of the contract, was in default, it is essential we should know what each did under the contract. What the contract required them to do is a question of law, which we have authority to determine when properly presented to us. What the parties did or omitted to do are questions of fact, which it was the province of the Appellate Court to determine and the duty of that court to recite in its findings. In Pease v. Ditto, 185 Ill. 317, we said (p. 319): "Section 88 of the Practice act makes it the duty of the