Fish et al. v. Roseberry. agreed to, that defendants were not bound to receive it, they will find for the defendants. 4. The court will instruct the jury that the admissions of the plaintiff are evidence against him. The court will instruct the jury, that in no event were the defendants bound to receive unmerchantable wheat of the plaintiff. The court will instruct the jury, that if they believe from the evidence, by the admissions of plaintiff, that he had not delivered the wheat in the time required by the contract, they will find for the defendants. 5. If the jury believe, from the evidence, that the plaintiff contracted to deliver 800 bushels of wheat within one month from the 18th day of October, 1855, at Kenworthy's warehouse in Andalusia, if possible, and that it was reasonably possible to do so, and that plaintiff did not deliver said wheat within that time, then the jury must find a verdict for the defendants, unless they find that defendants afterwards accepted the said wheat under same contract. 6. If the jury believe, from the evidence, that plaintiff contracted to deliver 800 bushels of spring wheat at Andalusia, at Kenworthy's warehouse, by the first day of November, A. D. 1855, if possible, if not, as soon after as it could be threshed and delivered, and that it was not possible to deliver said wheat by the said first of November, then the jury must believe that the plaintiff used all diligence and exertion in getting the same threshed and delivered as soon after said first day of November, A. D. 1855, as possible, or the plaintiff cannot recover. 7. The law is, that the wheat to be delivered on a contract to deliver a certain number of bushels of wheat, is to be of a fair, merchantable quality, and therefore if the plaintiff, under the contract, only delivered wheat which was not of a fair, merchantable quality, he cannot recover upon said contract. 8. Wheat of a fair, merchantable quality, means good fair wheat in market, without reference to whether the season has generally damaged wheat or not. 9. A contract for the purchase of 800 bushels of wheat to be threshed and delivered by the seller, is not a purchase of the unthreshed wheat, and such wheat would remain the property of the seller until the same was delivered under and according to the contract. 10. If the jury believe, from the evidence, that there was an extension of the time for the delivery of said wheat, by the said defendants, then the jury must further believe, from the evidence, that the wheat was delivered in strict compliance with Fish et al. v. Roseberry. the terms of said extension, otherwise the jury must find for defendants. And further; the mere statement of defendant to Kenworthy, that he expected Roseberry would deliver some wheat, is not of itself evidence of such extension. And the court then gave all said instructions as asked by the defendant, except the 3rd, 4th and 6th, and then and there refused to give the said 3rd, 4th and 6th instructions as above asked, but modified the same. (Which instructions as modified are in the words and figures following): 3. The court will instruct the jury, that if they believe, from the evidence, that plaintiff admitted that he had sold the wheat to defendants, but that he had not delivered it when he agreed to, that defendants were not bound to receive it, and that defendants did not receive it, and if from the evidence they believe such to be the fact, they will find for the defendants. 4. The court will instruct the jury that the admissions of the plaintiff are evidence against him; but that all the admissions of a party made at the same time and in the same conversation, both for and against himself, must be considered and weighed by the jury. 4. The court will instruct the jury, that in no event were the defendants bound to receive unmerchantable wheat of the plaintiff, unless they believe, from the evidence, that the defendants purchased certain wheat of plaintiff of a different quality after a fair examination of its quality, or purchased certain wheat then in stacks, with a fair opportunity of examining its quality. The court will instruct the jury, that if they believe, from the evidence, by the admissions of plaintiff or otherwise, that he had not delivered the wheat in the time required by the contract, they will find for the defendants. 6. If the jury believe, from the evidence, that plaintiff contracted to deliver 800 bushels of spring wheat at Andalusia, at Kenworthy's warehouse, by the first day of November, A. D. 1855, if possible, if not, as soon after as it could be threshed and delivered, and that it was not possible to deliver said wheat by the said first day of November, then the jury must believe that the plaintiff used all reasonable diligence and exertion in getting the same threshed and delivered as soon after said first day of November, A. D. 1855, as was reasonably possible, or the plaintiff cannot recover. To the modification of said instructions, the defendant excepted, which exceptions the court overruled, and gave the said instructions, as modified. After which the jury returned a verdict for the plaintiff, and Fish et al. v. Roseberry. assessed his damages at nine hundred dollars. The defendants entered their motion for a new trial, for the following reasons: 1st. That the court gave to the jury in the case, on behalf of and for the plaintiff, erroneous instructions. 2nd. That the verdict of the jury was against the instructions of the court in the cause. 3rd. That the verdict of the jury was contrary to the evidence in the case. 4th. That William I. Nevins, one of the jurymen who tried the cause, was, when said case was tried, over sixty years of age. Which motion the court overruled, and rendered judgment on the verdict. The defendants excepted, and prayed an appeal. The errors assigned are: 1. The court erred in giving each of the instructions asked for by defendant. 2. The court erred in modifying defendants' instructions. 3. The court erred in overruling motion for a new trial. 4. The court erred in rendering the judgment. B. C. Cook, for Appellants. BEARDSLEY & SMITH, for Appellee. BREESE, J. We are satisfied on an examination of the facts of this case and the instructions of the court, that a new trial should be awarded. It is true, as a general rule, courts will not interfere to set aside verdicts, where it is believed the jury has decided against the weight of evidence, and against the instructions of the court, provided it appears from the whole record, that substantial justice has been done. This is pre-eminently the rule in actions ex delicto, where juries have no well assigned limits within which to bound their judgments. It is somewhat different in cases ex contractu. Such cases furnish of themselves the rule, and whenever juries transgress it, their verdicts should be unhesitatingly set aside. The meaning of the contract in this case, taken in its most favorable aspect for the appellee, is, that he should make all reasonable efforts to deliver the wheat if not by the first of November, as soon after that day, as by the exercise of reasonable diligence he would have been enabled to do. The proof is, we think, conclusive, by such exercise, he could have delivered the whole quantity contracted for by the first, or middle of December. A man really desirous of performing such a contract, could have delivered the wheat, and without extraordinary exertion, by the first day of December. This the whole testimony fully shows. Eldridge v. Rowe, 2 Gilm. R. 96; Taylor Fish et al. v. Roseberry. v. Beck, 13 Ill. R. 386. Speculating upon the chances of the war with Russia being prolonged which would raise the price of wheat to one dollar and fifty cents per bushel, may account, perhaps, for his long neglect in the delivery. He has shown no diligence or desire to perform the contract. The proof shows also, that as late as May 12th, appellee did not consider that he had performed the contract, as at that time he offered to sell the wheat then in the warehouse, stating that he had once sold it to appellants, but had not delivered it according to contract, that they would not have it, and wanted a purchaser. Bannister v. Read, 1 Gilm. R. 92-100. Besides, it is proved, the wheat when delivered, was damp and unmerchantable, not such wheat as the appellants had contracted to purchase. Exposed the whole winter and part of spring to the weather, it had ceased to be such an article as they had contracted for in the preceding October. When in the stack, there was an implied warranty, that the wheat was merchantable. Misner v. Granger, 4 Ġilm. R. 69. There is proof also, and well worthy the attention of the jury, that the wheat was actually the property of Horatio Roseberry, the principal witness in the cause. The warehouseman receipted to him for it, he claiming it as his own, at the time of delivery, and it was so entered on the books. Under the contract as proved, the greatest degree of diligence was required of the appellee, to deliver the wheat at the earliest possible day. The first instruction, seems to be based upon a less degree of diligence as requisite on his part, and if it deteriorated, before its delivery, the loss must fall on the appellants. A more unjust proposition could not be stated. The jury are in effect told, that the appellee may idle away his time, his sons refuse to work when they might work,-no great effort be made to obtain machinery for threshing, and no care taken to protect it from the weather, and if thereby, there is a loss by injury to the wheat, the appellants must bear the loss. This is neither law, justice or good sense. The appellee has made out no case whatever against the appellants. He has neither performed his contract, nor endeavored to perform it. The appellants have never received the wheat, nor are they shown to have been in fault; and no verdict, under the proof in the record should be rendered against them. Parties should be held to a reasonably strict performance of their contracts, as well for the delivery of wheat as any other article, and cannot be permitted unusual delay, waiting for a rise in the price, and failing in that, deliver the article when the price is down. The instructions given on behalf of appellants were substantially correct, as well those modified, as those originally 22 300 126 492 Denman v. Bayless. asked, but the jury seem to have disregarded them. The justice of the case being wholly with the appellants, the judgment, for the reasons given, is reversed and the cause remanded. Judgment reversed. JOHN DENMAN, Appellant, v. AUGUSTUS J. BAYLESS, Appellee. APPEAL FROM MCLEAN. Unless the submission requires it, it is not necessary that an award should be published, or that notice of it should be given to the parties. Nor need it be in writing. The terms and directions of the submission, should control the arbitrators. It is not error to refuse to let one of the arbitrators testify, that he did not intend to surrender the award, after it had been agreed upon and signed, unless the losing party should consent. THIS was an action of debt, commenced by Bayless against Denman in the McLean Circuit Court, on an award. The declaration contains a special count on the award, and the common counts. To which declaration the defendant pleaded the general issue; and gave notice as follows: The plaintiff will take notice that under the above plea that the defendant will offer evidence and insist that the award sued on and set up in plaintiff's declaration, was made up and had by collusion and fraud of the plaintiff and Dolman, and a majority of the arbitrators, or with some of them, and for that reason, that the same is not binding upon defendant. That defendant had no notice of the time or place of meeting of the arbitrators, and no hearing of the matters in difference before them, between the plaintiff and defendant; that the award sued on was never published as the award of the arbitrators. The cause was submitted to a jury, who returned a verdict for plaintiff; whereupon the defendant moved for a new trial, which motion the court overruled, and entered judgment for the plaintiff below, for the sum of two hundred and forty dollars, debt, and one cent, damages. The defendant below prayed an appeal to the Supreme Court. Bayless, the plaintiff below, proved, on the trial of said cause, the signature of Augustus J. Bayless, John Denman, John W. Hanson, Samuel Watson, and John A. Dolman, to the submission, appointment of umpire, and award; and then the |