delivered the opinion of the Court.
Upon the trial of this cause in the court below, the defendant, during the cross-examination of the plaintiff, produced a paper purporting to be signed by Michael Barrett, concerning which the plaintiff testified as before set forth. The defendant then moved to exclude all the evidence given by the plaintiffs as to what took place when the negotiations for the sale of the machine were had.
The court properly refused to sustain such motion. The testimony was that she, not Michael Barrett, bought the machine, and that a paper was signed by her daughter, by her direction, relative to the machine she bought; not that the contract of sale or that any contract was signed.
The defendant then offered the paper in evidence. The court properly declined to admit it, as at that time the cross-examination of the plaintiff was going on. Thompson on Trials, Sec. 434; Queen’s Case, 2 Brod. & Bing., p. 288, 6 E. C. L. 149.
The paper so offered is as follows :
“Wheeler & Wilson Manufacturing Co.
185 and 187 Wabash Ave., Chicago. $60. June 1st, 1888.
Received of the Wheeler & Wilson Manufacturing Company, one Wheeler & Wilson sewing machine, style No. 9, D. A. A., Plate No. 13,689, with its parts, as follows : 1 hemmer, 1 doz. needles, 1 quilting gauge, 1 tuck gauge, 1 ordinary glass, 1 tucking glass, 1 corder glass, 1 braider glass, 4 bobbins, 1 needle wrench, 1 emery wheel, 1 black wrench, 1 oil can, 1 screw driver, 1 thumb screw, 1 throat plate.
To be returned to them on demand, and until such demand 1 agree to pay them, for the use thereof, ten dollars in hand, and five dollars per month while I keep the same; payable at the office of the Wheeler & Wilson Mfg. Co., 185 and 187 Wabash Ave., Chicago, Illinois, on the same day of each month following the above date, and agree to take good care of the same while in my custody, and not to remove it from my residence, Ho. 303 S. Halsted street, without their written consent first had and obtained.
Ho one is authorized to make any contract or verbal promise differing from that written and printed on the face of this lease. Michael Barrett.
Bead the above and below before signing.
Any promise or agreement made by any one different from that written or printed in this lease will not be recognized.
Wheeler & Wilson Mfg. Co.
Witness, M. J. Gleason.”
On the back of which were the following indorsements:
June 7, 1888, first payment O. M. $10; September 4, 1888, $5; October 3, 1888, $3; February 20, 1889. $3; March 27, 1889, $2; April 23, 1889, $2.50; May 29, 1889, $2; August 14, 1889, $2; September 18, 1889, $2; February 4, 1890, $2; March 12, 1890, $1.50; April 24, 1890, $2; June 5, 1890, $2; August 7, 1890, $3; October 2, 1890, $2; November 22, 1890, $1; April 21, 1891, $1.
The defendant did not again offer this paper, and no other evidence was offered by the defendant; as a consequence, neither this paper nor any evidence on the part of the defendant was given to the jury.
As the case, when submitted, stood, it appeared that the defendant had sold to the plaintiff a sewing machine; after it had been fully paid, it had instituted an action of replevin, taken the machine from the plaintiff, and then dismissed its suit without an attempt to sustain the same. The plaintiff was entitled to recover.
The damages awarded are excessive. It is a case, merely, of an unwarranted bringing of an action for replevin, a seizure thereunder of a sewing machine which originally cost $60, and had been in use nearly three years; followed by a voluntary dismissal of the replevin suit, a proceeding which Sec. 26 of Chapter 119, entitled “ Replevin,” seems to encourage. It is not a case of a seizure without process of law, as was the case of Singer Co. v. Holdfoot, 86 Ill. 455.
We think that $300 is as much as ought to be allowed in a case of this kind. If appellee remits to that sum within ten days, judgment will be affirmed for that amount; otherwise the judgment of the Circuit Court will be reversed and the cause remanded. In either case, at the cost of the appellee.