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1. APPEALS AND ERRORSwhat assignments of error are not open to review in Supreme Court. On appeal from the Appellate Court in a suit at law, assignments of error that the trial court erred in overruling the motion for new trial, that the evidence did not warrant the verdict and that the trial court erred in rendering a judgment for the plaintiff, are assignments of error upon the facts and are not open to review in the Supreme Court.

2. SAME-instructions must be considered as one charge. In determining whether an instruction was calculated to mislead the jury the instructions given must be considered as one charge; and if it appears that one instruction, though erroneous, was so modified by the others that it could not, in reason, have misled the jury the error is harmless.

Mueller v. Pels, 94 Ill. App. 353, affirmed.

APPEAL from the Branch Appellate Court for the First District;—heard in that court on appeal from the Supe. rior Court of Cook county; the Hon. AXEL CHYTRAUS, Judge, presiding.

N. A. Lough, for appellant.

GEORGE R. MITCHELL, for appellee.

Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

Appellee sued appellant in the superior court of Cook county in assumpsit, to recover damages for a breach of two contracts for the sale and delivery to him of dried brewers’ grains. The first contract provides for the delivery, at appellant's option, of the grains sold there. under, at the three ports,-Hamburg, Antwerp and Rotterdam,-on which there was a shortage of one hundred and twenty tons. The second contract provided for de . livery, at appellant's option, of the grains sold there.

under at the two ports,- Hamburg and Rotterdam,--on which there was a shortage of two hundred and two tons. The shortage by appellee on each of the two contracts, as above stated, was agreed to by the parties upon the trial. The damages claimed by appellee in the declaration and additional counts filed by him was the difference between the contract price and the market price of such grains at their places of delivery, and also a balance due appellee for an agreed allowance for damaged and inferior grains. Issues were joined, and the jury rendered a verdict in favor of the plaintiff for $1140.40. Motion for new trial being overruled, judgment was entered upon the verdict for that amount and costs. The defendant appealed to the Appellate Court for the First District, where the case was submitted to the branch of that court and the judgment of the superior court affirmed.

The errors assigned in tbis court are, first, that the first and second instructions given on behalf of appellee did not state correct propositions of law; second, that the trial court erred in overruling the motion by appellant for a new trial and refusing to set aside the verdict of the jury; third, that the evidence in the case did not warrant the jury in rendering a verdict for appellee; and fourth, that the trial court erred in rendering a judgment in favor of appellee. The fifth, sixth and seventh assignments are to the effect that the Appellate Court erred in affirming the judgment below. The second, third and fourth are no more than assignments of error upon the facts, and are not open to review in this court. (Hurd's Stat. 1899, chap. 110, sec. 89.)

Did the trial court err in giving to the jury the first and second instructions on behalf of the plaintiff? The criticism made upon the first is, that "it restricts the finding by the jury to the failure of Mueller to sell and deliver dried brewers' grains at certain prices and times, and disregards wholly the question of the delivery at separate and distinct ports, as contained in said con

tract." The language of the instruction in that regard is: “The measure of damages is the difference between the contract prices and the market prices at the place of delivery when such breach, if any, occurred.” Doubtless it would have been more accurate if it had said “at the places of delivery," or "at Hamburg, Antwerp or Rotterdam.” We do not think, however, the jury could have been misled by the inaccuracy. Especially is this so in view of the second instruction given at the instance of the defendant, which specifically tells the jury that the measure of damages could only be the difference between the contract price "and the market price at the several places of delivery." It is a familiar rule that in determining whether an instruction is calculated to mislead a jury to the prejudice of a party, the instructions given must be considered as a series or as one charge; and if it appears that one, though erroneous, is so modified or limited by others that it could not reasonably mislead the jury, the error will be treated as harmless. The first instruction is clearly within this rule.

The second instruction is said to assume that fourteen hundred and twenty marks was a settlement of plaintiff's claim in entirety, and takes from the jury the consideration of how payment was to be made, assuming such agreement to be admitted by defendant. We find in the instruction no just ground for this objection. It requires the jury to find the facts from the evidence, and does not assume anything.

On the merits of this case there could have been le. gally no different result from that found by the jury. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

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ARTHUR THOMPSON

192 79

194 v.

94

192 79 THE PEOPLE OF THE STATE OF ILLINOIS.

201 500 192

79 Opinion filed October 24, 1901.

207 490

110a 157 APPEALS AND ERRORSall given instructions must appear in abstract to authorize consideration of alleged error in giving them. Alleged error in giving instructions will be considered on appeal or writ of error only when all the instructions given are set out in full in the abstract of record.

1

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. GEORGE W. THOMPSON, Judge, presiding.

C. D. HENDRYX, and C. C. CRAIG, for plaintiff in error.

H. J. HAMLIN, Attorney General, and A. J. BOUTELLE, State's Attorney, for the People.

Mr. JUSTICE HAND delivered the opinion of the court:

The plaintiff in error was indicted by the grand jury at the November term, 1900, of the circuit court of Knox county for the larceny of $90 and a watch, the property of one George W. Henderson. He pleaded not guilty, and upon trial was convicted and sentenced to the penitentiary for an indeterminate period.

The evidence shows that on the 4th day of July, 1900, George W. Henderson and Charles and William Haven, who resided at Bushnell, went to the city of Galesburg, where they arrived in the forenoon; that during the day they visited various saloons and resorts, where they drank beer and whisky and became intoxicated; that Henderson had upon his person a watch and a considerable amount of money, and that he exhibited his money at the fair ground and in various saloons; that about five o'clock in the afternoon they met the plaintiff in error, who also resided at Bushnell and witb whom they were slightly

acquainted, and who had also been drinking; that together they boarded a street car with the intention of going to Lake George, which is situated near said city; that plaintiff in error and Henderson occupied adjoining seats, the Haven boys sitting near them; that Henderson was in a helpless state of intoxication while upon the car; that the Haven boys were also intoxicated; that while on the street car on the way to the lake the plaintiff in error took from the pocket of Henderson his money and watch; that shortly after they arrived at the lake they separated and the plaintiff in error returned to the city. In the afternoon he had no money with which to buy drinks and attempted to borrow two dollars of an acquaintance. Upon his return to the city he was seen to have in his possession a considerable amount of money. He took a freight train in the night and returned to Bushnell. A day or two after his return he had in his possession, which he had changed at a furniture store, a twenty-dollar bill, and shortly thereafter a ten-dollar bill. The watch, after his arrest, was found in a barn upon the premises which had been occupied by him. Upon the return of Henderson to Bushnell he called upon the plaintiff in error and asked him for his money and watch. The latter admitted he took the watch and money from him while they were upon the street car, but insisted he did so in order that he might take care of the same for him until he was sober, and stated that after he reached the lake he was very much intoxicated and lay down and went to sleep, and while asleep he was robbed of the money and watch and $15 of his own money. On the trial he testified he had Henderson's money and watch after he returned to the city from the lake, and that his wife took the same from him after his return home.

We are of the opinion the evidence is ample to sustain the verdict, and that the jury were justified in finding that the plaintiff in error took Henderson's money and watch with the intent to steal the same, and not for the

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