Dickinson v. Prince, 61 Ill. App. 335 (1895)

Dec. 12, 1895 · Illinois Appellate Court

61 Ill. App. 335

W. P. Dickinson v. Joseph W. Prince.

1. Extras—Burden of Proof as to.—Where a contractor makes a demand for extras, the burden of proof is upon him to show that the work in question was extra.

Assumpsit, for work, labor, etc. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.

Heard in this court at the October term, 1895.

Remittitur ordered, etc.

Opinion filed December 12, 1895.

Henry F. Joslin, attorney for appellant.

Thos. S. McClelland, attorney for appellee.

Mr. Presiding Justice Gary

delivered the opinion ok the Court.

The parties made a contract whereby the appellee undertook to do a job of carpenter work upon the house of the appellant for $1,200. The appellant had paid $1,550 and ivas entitled to further credit of $45.60. The appellee sued for $496.83 more, of which $265 was for some minor contracts. The appellant having paid $85 more than the contracts called for,The demand of the appellee was wholly for extras.

The court found for him $466.83. His demand being, in fact, for extras, the burden of proof was upon him. We can not recapitulate the evidence, without occupying too much space and taking too much time, but having studied it Ave are convinced that the appellant is charged by the finding with much more than he should be.

As the appellant has at one time offered to pay $332, if the appellee Avill remit all in excess of that sum, the judgment to that extent will be affirmed; otherwise reversed; in either case at the cost of the appellee.