Massac County IL Archives Court.....Taylor, V Davis 1849
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Source: Reports Of Cases Illinois
Written: 1849

Zepaniah Taylor, administrator et al, v. Job Davis, administrator.

Error to Massac.

1. Public lands — occupying claimants land. The first section of the sixty-
first chapter of the revised statutes, 1845, makes valid all "contracts, 
promises, assumpsits or undertakings," made in good faith for the sale of 
improvements made on the public lands. This statute does not require that 
there should in every case be a complete contract, as defined by the common 
law, but authorizes a recovery upon such promises and undertakings as do not 
strictly amount to a contract.(1)

2. Same. This statute authorizes a promise, which is a mere gratuity, to be 
enforced. The presumption is, that a party accepts a proposition for his 
benefit, unless his dissent be shown.

This was an action originally commenced before a justice of the peace, by the 
plaintiff in error against the defendant in error, to recover the value of an 
improvement on congress land. A jury was impanneled before the justice, who 
found a verdict for the plaintiff for twenty-four dollars and costs of suit.

The defendant took an appeal to the circuit court of Massac county. And at the 
May term of 1849 of said court, the cause was tried before Denning, judge, and 
a jury, which resulted in a verdict for the defendant The plaintiff moved the 
court for a new trial, but the motion was denied and judgment was rendered for 
the defendant for costs.

The plaintiff excepted to the decision of the court in refusing to grant a new 
trial, and tendered a bill of exceptions, which was filed. The plaintiff below 
sues out the writ of error.

R. S. Nelson, for plaintiff in error. The verdict is against law and evidence. 
See Revised Stat., 336, chapter 61, section 1; Appendix to Revised Statutes, 
617; Tucker v. Wood, 12 Mass., p. 189.

The court erred in its instruction to the jury. See Wilcox v. Kinzie, 3 
Scammon, p. 223; Stout v. McAdams, 2 Scam., p. 68; Humphrey v. Collin, 47.

The court erred in refusing to grant a new trial. Barton v. Clark, 1st Con. 
Rep., page 472-3 and 5; Hammond v. Wadham, 5 Mass. Rep., 555; Tucker v. Woods, 
12 John., page 189; Copperwhaite v. Jones, 2 Dallas, page 56.

T. C. G. Davis, for defendant in error: The evidence in this case shows there 
was no complete contract between the parties. To make a contract complete, 
both parties must agree to it. Chitty on Contracts, page 9.

They must assent to the same subject matter in the same sense. 1st Sumner, 
page 218.

If one party does not accede to a promise as made, the other is not bound by 
it. 7th John., 470.

A new trial will not be awarded, unless the verdict of the jury is manifestly 
and palpably against the evidence. 5th Gilman, 72; 1st Scammon, 128, 420, 532; 
2d Scammon, 350, 358; 2d Gilman, 618.

The instructions given by the court, at the instance of defendant, could not 
mislead the jury, and therefore it was not erroneous.

Trumbull, J. This suit was originally commenced by Samuel N. Taylor against 
Amaziah Davidson, before a justice of the peace, to recover for an improvement 
made upon government land. The plaintiff recovered judgment before the 
justice, which was reversed upon appeal to the circuit court, and the refusal 
of that court to grant a new trial is the only question in the case.

The bill of exceptions contains the whole evidence, from which it appears that 
Davidson, in a conversation with Taylor, in reference to an improvement which 
the latter claimed upon congress land, stated, "that he would pay him for said 
improvement what it was worth to him, said defendant." Another witness 
testified that "defendant Davidson said to him, the witness, that Taylor had 
made a pass at him relative to pay for the improvement, then recently entered 
by defendant, and that defendant had said to Taylor that he had always thought 
that if he should ever enter an improvement of another man, made on congress 
land, he would pay him whatever it was worth, but that he would not be willing 
to pay him, Taylor, what he wanted for his improvement, but he was willing to 
leave it to two disinterested men."

It was further proven that the improvement was made by Taylor, and that it was 
worth twenty-five or thirty dollars, at the time Davidson entered it.

The testimony of Lefevre, who was introduced as a witness, first by the 
plaintiff and subsequently by the defendant, is so confused and uncertain as 
it appears in the record, that it is difficult to understand or perceive how 
it could have any particular bearing in the cause. In one part of Lefevre's 
testimony he speaks of the pre-emption of one Hagarty, mentioned by witness 
Moody, when in fact Moody had not in his evidence said anything about a pre-
emption of Hagarty, or of any other person. It is also impossible to gather 
from the record whether the conversation detailed by Lefevre, as having taken 
place between himself and Taylor, occurred at the time witness went to the 
land office to make the entry for Davidson, or when he happened there at some 
other time.

The foregoing was in substance all the testimony in the cause, and we think it 
makes out such a case as under our statute should have entitled the plaintiff 
to a verdict. It is objected, however, that to make a contract complete both 
parties must agree to it, and that there is no evidence that Taylor assented 
to the proposition of Davidson, to pay him for the improvement what it was 
worth to him, Davidson. The statute, R. S., ch. 61, sec. 1, is very broad, and 
makes valid all "contracts, promises, assumpsits or undertakings," made in 
good faith for the sale of improvements made on the public lands. This statute 
does not require that there should in every case be a complete contract as 
defined by the common law, but authorizes a recovery upon such promises and 
undertakings as do not strictly amount to a contract. The witness who 
testifies to the promise in this case does not state when it was made, but 
from what the next witness says, that Davidson told him about a "pass" made by 
Taylor in reference to pay for the improvements then recently entered by 
Davidson, it is apparent that the promise was made after the entry of the 
land. In such a case the promise is a mere gratuity, which the statute 
authorizes to be enforced. R. S., 617. The presumption is, that a party 
accepts a proposition which is for his benefit unless his dissent be shown. 
After the entry of the improvement by the defendant, the plaintiff was at his 
mercy, and could only recover upon his voluntary promise. This case is unlike 
that of an ordinary sale of property, where one party offers to give a certain 
price for it, which the other agrees to take. Here the plaintiff's improvement 
was irredeemably gone. He could not fix a price upon it, but was bound to lose 
it or accept what the plaintiff might please to give or promise to pay him. In 
such a case the fact that plaintiff accepted the proposition, may well be 
implied, without evidence to show it affirmatively. If it appeared that the 
promise was made before the entry of the land, some proof of acceptance might 
be required, as till entered the owner might claim and enforce his rights to 
an improvement upon public land.

Looking at the evidence as contained in the record, we are satisfied that the 
verdict was manifestly against it, and should have been set aside. The jury, 
most probably, labored under a misapprehension as to what was necessary to 
constitute a contract in this case.

The judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.

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(1) The decision in this case was modified in Blankenship v. Cuttrell, 16 
Ill., 62, in which case it was held a contract to pay for improvements upon 
public land, made after entry on the land, will not be implied in law. The 
party claiming must show an express agreement to pay for them before he can 
recover.


Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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