Opinion of the Court.

of a contract between the parties, by which appellee claims to have purchased a large number of hogs from appellant, and which he refused to deliver. The case was tried by the court and a jury, and a verdict found for the plaintiff for $162.10; upon which judgment was rendered, whereupon an appeal was prosecuted to this court.

Mr. J. I. TAYLOR, for the appellant.

Messrs. ECKELS & KYLE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The weight of the evidence in this case, seems to be in favor of the appellant, that he did not deliver the hogs because appellee had told him he had not all the money to pay down for them. We infer from the proof, it was a cash trade, the money to be paid on delivery. If, then, the party who is to receive, informs the party who is to deliver, that he cannot pay the money, the latter is excused from offering to deliver.

It appears from the testimony of Wicks, that this was the reason why appellant did not offer to deliver the hogs, but we do not make a point on this, as there was other testimony before the jury, and they seem to have considered that of Plumby, for appellee, of more force and entitled to more favorable consideration than that of Wicks.

The appellant has assigned as error, giving the instructions asked by appellee. They were four in number, and we think the first was erroneous, as it required of appellee proof only of a willingness to pay on delivery. We hold a party should show, in such a case, not only a willingness to pay, but a readiness and ability to pay. Hungate v. Rankin et al. 20 Ill. 639; Frink v. Hough, 29 id. 145.

Readiness and willingness to perform, is a question of fact for the jury. It was therefore error in the court to pass upon the weight of evidence on that question, as it seems to have done in plaintiff's third instruction. Whether the facts proved by appellee, "showed his readiness and willingness to perform

Syllabus.

the contract," was for the jury and not for the court. This instruction was, to that extent, erroneous. We see no objection to instructions two and four, except, as it regards four, we are not prepared to say the qualification "slight," should have been allowed. In all cases, and on all the points of a case, a jury is required to have sufficient evidence to satisfy them on the point made.

The cases above referred to but recognize the general rule recognized in actions for non-delivery of goods or personal property to be paid for at the time of delivery. The plaintiff must not only aver he was ready to pay at the time, but he must prove he was ready. Until this is done, a defendant is not bound to show performance, or a readiness to perform, on his part. Topping v. Root, 5 Cowen, 404.

For the error in giving the instructions one and three, the judgment must be reversed, and the cause remanded.

Judgment reversed.

JAMES MIX, impleaded, etc., et al.

v.

PEYTON R. CHANDLER et al.

1. PLEADING AT LAW-joinder in demurrer a mere formality. It is no objection that a demurrer was taken up and disposed of without a formal joinder, and judgment rendered thereon. A joinder in demurrer is unneces

sary.

2. PRACTICE — rules of — established by inferior courts. This court will not reverse a judgment, merely on the ground, that the court, in rendering it, disregarded one of its established rules of practice, unless such violation be plain, and likely to result in injustice. A court is the best interpreter of its own rules.

3. SAME-construction of the thirty-fourth rule of the Superior Court. Under the thirty-fourth rule of practice, adopted by the Superior Court of Chicago, it is proper for the court to dispose of a demurrer in a cause when reached upon the docket for trial, without any notice; it being the duty of counsel to be present, and prepared for its disposition, whether upon an issue of fact or law.

Opinion of the Court.

APPEAL from the Superior Court of Chicago.

This was an action of assumpsit, brought by the appellees, Peyton R. Chandler, Samuel L. Keith, and Thomas Snell, against the appellant, impleaded with Benjamin F. Murphy, Leander E. Murphy, and Robert P. Murphy, at the May Term, 1865, of the Superior Court of Chicago. The further facts in this case are stated in the opinion.

Messrs. KALES & WILLIAMS, for the appellants.

Mr. GEORGE GARDNER, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

In this case the defendants demurred to the plaintiffs' replication. There was no joinder. When the cause was regularly called for trial the demurrer was heard and overruled, and damages assessed by a jury, upon whose verdict a final judgment was rendered. At a subsequent day of the term, one of the defendants moved to set aside the verdict and judgment, which motion was overruled.

It is urged for the appellants, first, that judgment was improperly rendered on the demurrer without a joinder, and, second, that the case was heard in violation of the rules of practice established by the Superior Court.

As to the first point, it is only necessary to say, as has often been said before, that a joinder was unnecessary.

As to the second, we would remark, that, as the Superior Court establishes its own rules of practice, and has the legal authority so to do, it must itself be their best interpreter, and we should not reverse a judgment merely on the ground that one of those rules had been disregarded, unless the violation was very plain and likely to result in injustice. In the present case we perceive no departure from the rules. The appellant insists that he was entitled to one day's notice of the argument of the demurrer. But the thirty-fourth rule provides that causes shall be disposed of as they are called numerically for trial, and all unexpired rules shall terminate on the call of the

44 176 24a 249

cause for trial. It is the duty of counsel to be in court when their case is regularly reached upon the docket for trial, and prepared for its disposition, whether upon an issue of fact or law, and they cannot complain if, issue being joined, the court disposes of it in their absence. The one day's notice required by the rules was, no doubt, intended to apply only to those cases in which a demurrer is to be argued in advance of the calling of the cause for trial. Such seems to be the construction placed by the court on its own rules, and it seems to us not unreasonable.

Judgment affirmed.

THE CHICAGO AND NORTH WESTERN R R. COMPANY

V.

CHARLES L. WILLIAMS.

NEW TRIAL — verdict against the evidence. When the proof, though slight, supports the verdict, and is uncontradicted, this court will not disturb it.

APPEAL from the Circuit Court of Winnebago county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

This was an action on the case brought by the appellec, against the appellant, in the court below, to recover for two thousand two hundred and sixty-nine-pounds of iron, alleged to have been delivered to it as a common carrier, to be transported from Chicago to Harvard, Illinois, and which was lost. The facts in the case are fully stated in the opinion.

Mr. JAMES M. WIGHT, for the appellant.

Messrs. LATHROP & BAILEY, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The only question presented by this record is, whether the evidence sustains the verdict of the jury. There is no dispute

Opinion of the Court.

that one of the roads is liable to appellee for the value of the iron which was lost. And it is equally clear, that the Pittsburgh, Fort Wayne and Chicago railroad company had the iron in possession, and brought it to Chicago. It is contended, that it was transferred by that company to the cars of appellants, which were near to the transfer house of the first named company, for the purpose of being placed therein. Appellants, on the contrary, contend that it was not placed in their car for further transportation, or otherwise.

Reynolds swears, that, previous to and at the time the iron came to Chicago, he was in the employment of appellants, acting as their agent in transferring freight from the Pittsburgh, Fort Wayne and Chicago Railroad company, to the cars of appellant; that he received this freight from that company; gave a receipt to the other company for it, and entered it in his check book. That he afterward got the receipt back, but that he invariably gave a receipt for freight when it was loaded into appellants' cars from the transfer house of the other company. That it was the usage of the other company not to permit freight to leave their grounds without a receipt. That it was his business to receive freight, and give receipts therefor at the depot of the other company; and he was not in the habit of giving receipts until the freight had been checked out at appellants' depot. This evidence, uncontradicted, is amply sufficient to sustain the verdict.

Crowley, another employee of appellants, testifies, that when he checked out the freight at their depot, the iron was not in the car and was not found, and that it did not reach appellants' depot. That he remembers the iron was billed by Reynolds as transferred to the car, but when he checked the freight out of the car, the iron was not there, and that he at once gave notice to Reynolds and the other company, that the iron was short. Reynolds swears, that he remembered that the iron was transferred; remembers the number of bundles, and the mark on the bundles. We think the fact, that when appellants' agents some days afterward came to unload the car they did not find the iron, does not overcome the evi44TH ILL.

12.