Syllabus. Opinion of the Court.

pay, reconveyed to B, his grantor, two of the eighty tracts, and it was contended that he intended also to include in this conveyance the two-acre tract. He never paid the taxes afterward on it; but about six years afterward, by a verbal contract, sold it to C for $40, to be paid in rails. C took possession and built a house on it, and improved the same, and offered to make payment, and demanded a deed. A then informed him that the title was in B, and told him he must go to the latter for a deed, which he did, and took a bond for a deed. He then sold his interest to D, who sold to E. After this, A filed a bill against E to enjoin the removal of the building, and E filed a cross bill to reform the deed from A to B, by inserting therein the premises in dispute, and subsequently amended his bill, praying for specific performance of the verbal contract of sale to C, which was decreed by the circuit court upon payment of the purchase money due: Held, that the decree was proper, and that the conduct of A, in sending C to B for a deed, relieved C of all charge of laches, in abandoning his contract with A, and that E, under the circumstances, was not chargeable with laches.

APPEAL from the Circuit Court of Bureau County; the Hon. E. S. LELAND, Judge, presiding.

The facts are sufficiently stated in the opinion of the

court.

Mr. S. M. KNOX, for the appellant.

Mr. J. I. TAYLOR and Mr. THOMAS J. HENDERSON, for the appellee.

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

In December, 1857, one Bubach sold to the complainant, Hamilton, a tract of land consisting of three lots of eighty acres each and a lot of two acres. In 1860, Hamilton reconveyed to Bubach two of the lots, containing one hundred and sixty acres. Bubach swears that it was understood, at the time, that the deed also included the lot of two acres. Hamilton denies this in his testimony. In 1866, one Britt went to Hamilton to buy this two-acre lot, and, according to the testimony of both Hamilton and Britt, made a verbal con

Opinion of the Court.

tract of purchase-Hamilton telling him he could go on and build his house, and Britt agreeing to pay in the following March. The price agreed on was $40, which Britt testifies Hamilton was to take in rails. Some time in the winter, after making this contract, Britt swears he called on Hamilton again, having, in the meantime, built his house, and told him the rails were ready, and asked for a deed. Hamilton, as Britt testifies, then told him the title was in Bubach, and that he must go to him for a deed. Britt went to Bubach, who gave him a bond for a deed on payment of $45. Britt subsequently sold his interest to Garver, and Garver sold to Rook, the appellee herein. Hamilton, in 1870, filed a bill against Rook, alleging that he was about to remove the house from said two acres, and praying for an injunction. The appellee answered, and filed a cross bill setting up Britt's bond from Bubach and the assignments to himself, and alleging a mistake in the reconveyance from Hamilton to Bubach. He afterward filed an amended cross bill setting up the verbal contract between Hamilton and Britt, alleging the facts above stated as part performance, and praying for relief under this contract if denied on the other ground. The court held the mistake in the reconveyance not sufficiently proven, but granted the relief asked under the amended cross bill, requiring Hamilton to convey on the payment of the $40 and interest.

Although the evidence in this case is not of the clearest character, we think the court did not err in its decree. That a verbal contract was made, is shown by the evidence of the appellant himself; and that Britt took possession and built his house under that contract, is equally clear. He testifies, when he went for his deed, the appellant referred him to Bubach; and while this is denied by appellant, it is difficult to explain why Britt should have gone to Bubach and have agreed to give him five dollars more than he was to give appellant, unless the latter had in some way referred him to Bubach as the person from whom the title was to come. Britt gained nothing by taking the bond from Bubach, and was placing his improvements in peril. His statement is consistent with the

Opinion of the Court. Syllabus.

established facts in the case, and he is a disinterested witness. He further states that when he told appellant the rails were ready and demanded a deed, appellant not only referred him to Bubach, but said he himself could not give him a deed. If this be true, it relieves Britt of all charge of laches or of abandoning his contract with appellant.

No presumption is to be indulged against the appellee because in his first cross bill he only set up the bond from Bubach. He was not the immediate purchaser from Britt, and may well have been ignorant of the true character of the transaction.

The decree does substantial justice. It gives appellant the price for his land, which he admits he sold it for, with interest, instead of giving him, for nothing, the improvements purchased by appellee in good faith.

Decree affirmed

CHICAGO CITY RAILWAY COMPANY et al.

v.

JAMES R. HENRY.

1. DAMAGES, EXCESSIVE―personal injury. In an action on the case against a city railway company to recover damages for personal injury resulting from being ejected and thrown from a street car by the servants of the company, it appeared that the plaintiff got up immediately after he was thrown upon the ground, pursued and overtook the car, and walked a considerable distance the same evening; went to work the next day, as usual, and, when examined some days afterward, there was found no abrasion, contusion, or external injury; and the whole evidence failed to show that he had received any serious and permanent injury; and it further appeared that at the time of the trial he had recovered to a considerable extent; and, even if the injury received was permanent, that it was not so serious as to disqualify him from business or earning a livelihood. The jury returned a verdict for $12,000 damages: Held, that the damages were so grossly and glaringly excessive that a new trial should have been granted.

2. EVIDENCE-pecuniary ability in aggravation of damages. On the trial of an action against a street railway company and the conductor to recover for

Syllabus. Opinion of the Court.

personal injuries for the acts of the servants of the company, the court received evidence of the pecuniary ability of the company in aggravation of damages: Held, that the admission of the evidence was improper, as the conductor was liable for the judgment, and the evidence as to him was highly prejudicial.

APPEAL from the Circuit Court of Du Page County; the Hon. SILVANUS WILCOX, Judge, presiding.

This was an action on the case brought by appellee in the Superior Court of Cook County against the Chicago City Railway Company, and Michael Moran, the conductor. The testimony was voluminous, but the conclusions of fact therefrom are stated in the opinion.

Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellants. Messrs. COOPER & PACKARD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by appellee in the Superior Court of Chicago, against appellants to recover damages for injuries claimed to have been received by being ejected from the cars of the company. The venue was subsequently changed to the circuit court of Du Page County, where a trial was had before the court and a jury, resulting in a verdict and judgment for $12,000 against appellants.

It is first urged that the verdict is clearly against the evidence. The evidence is conflicting, and as it is the province of the jury in such cases to weigh it, unbiased, and free from extraneous considerations, we shall forbear to comment on its weight, as the case must be submitted to another jury when the same evidence will no doubt be again introduced.

When the evidence is attentively considered, we are irresistibly forced to the conclusion that the verdict is glaringly excessive. The injury bears but a slight comparison to the damages awarded. It is proved, and seems not to be contradicted, that appellee arose immediately after striking the ground, pursued the car, overtook, and caught hold of it, and

Opinion of the Court.

called upon persons present to witness and remember the circumstances. He seems to have walked a considerable distance the same evening after the occurrence, and went to work the next day as usual, but swears he felt sore and a little dizzy. On being examined by his physician, some six or eight days after, no abrasion, contusion, or other external injury to the head was discovered, nor apparent injury to any portion of his body. In all of this we have nothing that indicates severe injuries. But some ten days later, when another physician was called in consultation, the appearance of a depression was discovered on one side of his head. But whether natural, accidental, and of long or recent standing does not appear. Nor do we see that it was caused by the fall from the car.

That appellee was injured there seems to be no doubt, but whether the injury is serious and permanent, from the evidence, there is great doubt. His medical witnesses do not express any very decided opinion on that point. They incline to the opinion that, when a severe injury has been received by the nervous system, the person seldom ever recovers completely. But whether appellee has received such an injury appears to be more than doubtful. After being out of employment for about four months, the firm with whom he was engaged procured his return to his former employment at the same wages, which they have regularly paid him ever since; and one of the members of the firm says they employed him because he was better qualified for the place than any one else he could employ. It is true, the testimony shows they have furnished him with a stronger man to assist in heavy work since than before the injury. But we can hardly believe that he is injured mentally, when his employers find him still, from his experience, more skillful than others whom they could employ to fill the place.

As to the extent and permanency of the injury the physicians disagree. Appellee's seem to regard it serious, and think it probable that it will be permanent in its character, while Dr. Rea, called by appellants, thinks he will recover; and the