A. L. Jones Co. v. Bowman Dairy Co., 209 Ill. App. 579 (1918)

March 12, 1918 · Illinois Appellate Court · Gen. No. 23,247

209 Ill. App. 579

A. L. Jones Company, Appellee, v. Bowman Dairy Company, Appellant.

Gen. No. 23,247. (Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1917.

Reversed.

Opinion filed March 12, 1918.

Rehearing denied March 23, 1918.

Statement of the Case.

Action by A. L. Jones Company, a corporation, plaintiff, against Bowman Dairy Company, a corporation, defendant, to recover damages for a breach of contract. From a judgment for plaintiff, defendant appeals.

Montgomery, Hart, Smith & Steere, for appellant.

Oscar H. Olson, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice

Barnes delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and erbob, § 482 ^* —when proposition of law unnecessary to raise question of sufficiency of evidence. No proposition of law is necessary to raise the question of the sufficiency of the evidence below to establish a custom, where the materiality of the evidence was objected to and there was a motion predicated on the insufficiency of the entire evidence.

2. Customs and usages, § 27*—when evidence insufficient to establish custom,. Where there is no testimony tending to show a general custom as claimed by plaintiff and his own witnesses testify that they know nothing of a custom with other dealers and that their conclusions are drawn from their own experiences, such evidence is insufficient to establish a custom.

3. Customs and usages, § 27*—what necessary to prove custom,., To establish a usage or custom, it is not sufficient to prove certain isolated instances, as the usage must be positively established as a fact, and not left to be drawn, as a matter of inference, from transactions.