Weyhrich v. Foster, 48 Ill. 115 (1868)

Sept. 1868 · Illinois Supreme Court

48 Ill. 115

Peter Weyhrich v. George B. Foster.

1. Bill of exceptions—what it should contain. When a party assigns for error, the refusal of the court to give certain instructions prayed by him, and the record shows that a part of the instructions asked by him were given, but fails to disclose those instructions, it will be presumed that those given comprised the substance of those refused.

2. Instructions—not to he repeated. The rule is well settled, that a court need not repeat its instructions. An instruction once given, its duplicate in substance may be refused.

Appeal from the Circuit Court of Tazewell county; the Hon. James Harriott, Judge, presiding.

This was an action of assumpsit, brought in the court below by the appellee, George B. Foster, against the appellant, Peter Weyhrich, to recover certain moneys alleged to have been paid out and expended for the use, and at the request of, the appellant. A trial had at the June term, 1868, resulted in a verdict for the plaintiff for $1,475.00. A motion for a new trial was made and overruled, and judgment rendered on the verdict, whereupon the defendant appealed to this court.

Messrs. Prettyman & Richmond, for the appellant.

Mr. C. G. Whitney, for the appellee.

Mr. Justice Lawrence

delivered the opinion of the Court:

It is urged in behalf of appellant, that the circuit court erred in refusing instructions prayed by him. It appears, however, that the court gave a part of the instructions asked by him, and those thus given are not contained in the record. JS/on constat but that they comprised the substance of those refused. It is not uncommon for counsel to express the same idea in different instructions, and when one instruction is, in substance, the duplicate of another already given, it may well be refused.

It is also urged, that the verdict was against the evidence, hut the money was clearly paid by Foster, on the order of Weyhrich, and the jury were justified in inferring, from the evidence, that it was Foster’s money.

Judgment affirmed.