Reed et al. v. Hobbs. after contained, have covenanted and agreed, and do hereby covenant and agree, with the said Calhoun, Early, & Co., to do, perform, and complete all the grading in section one, on that part of the Northern Cross Rail Road lying between the south side of the corporation of Springfield, and the Sangamon river, in the manner and according to the specifications and plans exhibited and fully understood by said Hobbs, of the first part, at and before the sign ing of this article of agreement, which said specifications and plans are now on file in the rail road office in Jacksonville; and the said Hobbs, of the first part, further covenants and agrees to construct and execute the work above mentioned, and every part thereof, according to the specifications and plans aforesaid, and at the prices hereinafter contained, and under the immediate examination, orders, and directions of the Acting Commissioner, engineers, and superintendents on the line for the time being, and under the like examinations, orders, and directions of the said Calhoun, Early, & Co., parties of the second part, and will at all times conform, during the progress of the work, to any and all changes and alterations that may be directed to be made in the location, plan, form, and dimension, or manner of constructing said work, and will, in all respects, conform to, and comply with, each and every provision of the contract entered into by and between the said Calhoun, Early, & Co., and the Acting Commissioner of this district, bearing date, the 29th day of November, A. D. 1837, as far as said contract is applicable to the said section number one, and no further, excepting as to the prices of the work, which are to be as hereinafter mentioned. And the said Calhoun, Early, & Co., parties of the second part, for, and in consideration of, the covenants and agreements herein contained, do hereby covenant and agree with the said Hobbs, to pay him the following prices in the manner, and at the times hereinafter specified, for performing the work aforesaid, to wit: for each cubic yard of embankment, ten cents; and for each cubic yard of excavation, ten cents; to be paid on the estimate of the engineer in each month, according to the contract with the Acting Commissioner above referred to, retaining fifteen per cent. on the amount of such estimate, as security for the faithful performance of this agreement. It is mutually understood and agreed, between the party of the first part and the parties of the second part, that in case any change or alteration shall be directed, in writing, to be made as aforesaid, the amount of such increase or diminution of the work, is to be estimated by the engineer, and the sums to be paid to said Hobbs, is to be increased or diminished accordingly, according to the rates and prices hereinafter specified to be paid for the same, according to the said contract with the Acting Commissioner, above referred to. It is further understood and agreed between the parties to this article of agreement, that the said Reed et al. v. Hobbs. Hobbs is to commence the said work on or before the first day of March next, and complete the same by the first day of September next, and that this article of agreement is to take effect so soon as approved by the Acting Commissioner. It is further understood and agreed between the parties to this article of agreement, that so soon as it is ascertained, that the said party of the first part is found to act contrary to the interest, rule, or regulation of the party of the second part, this contract is forfeited. "In witness whereof, we have hereunto set our hands and seals, this day and year first above written. "In the presence of, "JOSHUA S. HOBBS, [SEAL.] CALHOUN, EARLY, & Co. [SEAL.] JOHN S. ROBERTS, The defendants pleaded performance of their covenants, upon which issue was joined, and a trial had at the March term, 1839, before the Hon. William Thomas and a jury. Verdict and judgment were rendered for the plaintiff for $311,44. The defendants appealed to this Court. The bill of exceptions states all the important facts in the case, except the refusal of the Court to permit a certain question, which is stated in the opinion of the Court, to be answered. On the trial in the Court below, the following bill of exceptions was taken : "The defendants moved the Court to instruct the jury, that the contract between plaintiff and defendants, as far as this part of the road mentioned in said contract to be done by plaintiff extended, entitled the plaintiff to compensation upon his fulfilling defendants' contract with McConnel (1) to that extent; and under plaintiff's contract, he could not claim for any excavation or embankment not allowable to defendants, under their contract with McConnel; the only difference being the amount of compensation, and that he was also to do the work subject to directions of defendants; but as respects the manner in which the work was to be performed, and for what kind of work, payment was to be made, it was the same under both contracts. "That the plea of covenants performed in this case, does not admit any thing more than the plaintiff's right to recover nominal damages, and without proof of excavation, the plaintiff could not recover more than nominal damages for excavation. "But the Court refused to give the said instructions, or either of them, and, on the contrary, instructed the jury, that what was excavation in the contract mentioned, was a matter of law, and meant taking up earth along the route of the rail road for the pur (1) The Acting Commissioner. Reed et al. v. Hobbs. pose of making the rail road, whether necessary to make the embankment or not. To the giving of said instructions, (given as aforesaid,) the defendants objected. "To all which opinions and judgments of the Court, in refusing to permit said evidence to be given, in refusing the instructions asked by defendants, and in giving the instructions the Court did give, the defendants, by their attorney, except, and pray that this their bill of exceptions may be signed, sealed, and enrolled, which is done accordingly. WM. THOMAS, [SEAL.]" C. WALKER, J. LAMBORN, and J. D. URQUHART, for the appellants. S. T. LOGAN and E. D. BAKER, for the appellee. SMITH, Justice, delivered the opinion of the Court : (1) The Circuit judge erred in this case, in refusing to permit the witness, the engineer upon the road, to answer this question, which was asked by the defendants: "Whether or not there had been any excavation executed by Hobbs, in the meaning of that term as applied to the work in the contract?" Nothing is more certain, where terms of art are used in contracts, if there be any doubt as to the sense in which they are used, and ought to be applied, that resort is to be had to the opinion of professional men, to ascertain the technical meaning attached to them by those most conversant with their use. (2) The instructions asked by the defendants' counsel were erroneously withheld. It is apparent, that the plaintiff, as a sub-contractor, had engaged to perform the work in the same manner as his principal; and that the terms of that contract, in every thing but price, were to govern. The manner of the execution of the contract directly refers to the specifications and plans, and is to be under the immediate orders and directions of the Acting Commissioner's engineers. The instructions should, therefore, have been given. In reference to the plea of covenants performed, the decision was erroneous. The plea, where it is not sustained, admits no more than a right to recover nominal damages. (3) The judgment is reversed, with costs; and the cause remanded, with instructions to award a venire de novo in the Circuit Court. Judgment reversed. Note. Where a new word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any branch of business, or to any particular class of people, evidence of usage is admissible to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the Court then is, to instruct the jury what will be the legal effect of the contract, as they shall find the meaning of the word, modified or explained by the usage. Eaton v. Smith et al, 20 Pick. 150. (1) Wilson, Chief Justice, was not present on the argument of this cause. Quigley v. The People. MOSES W. QUIGLEY, plaintiff in error, v. THE PEOPLE Error to Cook. In an indictment against a defendant, for having in his possession counterfeit bank notes, purporting to be notes of the Merchants' Bank of the city of New York, with intent to utter and pass the same as genuine, it is not necessary to charge that the offence was committed feloniously, infamously, or criminally. If the offence is charged in the words of the statute, it is sufficient. It is no objection to an indictment in such a case, that it does not allege that there is such a corporation as the Merchants' Bank. An indictment for having in possession a forged bank bill, with intent to utter and pass the same, set out the bill in hac verba, but, in copying the bill, the letter "C" was omitted. The bill introduced in evidence, was lettered "C," in the usual place for marking bank bills with letters: Held, that there was no variance. Held, also, that a note payable to " B. Aymar, or bearer," was properly admitted in evidence, where the description in hæc verba was " B. Aymar, bearer." Semble, That there is no difference between bank bills and bank notes. THE plaintiff in error was indicted at the March term, 1838, of the Cook Circuit Court, for having in his possession certain forged bank bills, purporting to be on the Merchants' Bank of the city of New York, with intent to utter the same, and defraud the said Bank. He moved to quash the indictment, because, 1st. The indictment did not charge that the offence was committed feloniously, infamously, or criminally. 2d. It does not allege that there was any such bank as the Merchants' Bank of the city of New York. 3d. The allegation in the indictment is, that bank bills were forged; when, in fact, the instruments set forth are promissory notes. The motion was overruled by the Court; and the defendant then pleaded not guilty. Upon the trial of the cause, the plaintiffs offered in evidence to the jury, a note which was objected to by the defendant's counsel, on account of an alleged variance between the note offered, and the one set forth in the indictment, in this, the note offered in evidence, is marked with the letter "C," in the usual manner of lettering bank notes; whereas, the note set forth in the indictment, has no such letter, and is not marked with any letter whatever. This objection was overruled by the Court, to which the defendant excepted. The plaintiffs also offered in evidence a certain other note, which was objected to by the defendant's counsel, on account of a variance between the note offered, and the one set forth in the indictment, in this, the said note offered in evidence, is payable to "B. Aymar or bearer ;" and the one set forth in the indictment is payable to "B. Aymar, bearer;" which said objection was Quigley v. The People. overruled by the Court; and the said notes severally read in evidence to the jury, to which the defendant excepted. The jury returned a verdict of guilty; and that the defendant should be confined in the penitentiary for three years. J. D. CATON and N. B. JUDD, for the plaintiff in error, contended that the said Court erred in overruling the said motion to quash the said indictment. R. L., Crim. Code § 164, 190, 170, 35; Arch. Crim. Plead. 51. The Court erred in admitting in evidence the said notes. Russ. on Crimes 360-1; Arch. Crim. Plead. 102, 292. The indictment ought to have averred that there was such a legal institution as "The Merchants' Bank of the city of New York," because it is alleged that the defendant below intended to defraud that institution; and the Court will not intend that there was such a corporation. 2 Russ. on Crimes 362. G. W. OLNEY, Attorney General, for the defendants in error. SMITH, Justice, delivered the opinion of the Court: This was an indictment and conviction, under the 75th section of the Criminal Code, (1) for having in possession counterfeit bank notes, purporting to be notes of the Merchants' Bank of the city of New York, with intent to utter and pass the same as genuine. Several minor points have been made, which are untenable; and the only one requiring notice is, whether it was necessary to have alleged in the indictment, that the intent was felonious. Without disputing the common law rule, which requires all offences, above misdemeanors, to be alleged to have been done feloniously, or with an intent to perpetrate a felony; it is sufficient for the decision of the present question to state, that the 152d section of the code of criminal jurisprudence of this State, has, under the 15th division, and head of "Construction of the act, and duty of Courts," declared, that "Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence may be easily understood." (2) The technical terms used at common law, seem to be dispensed with by this provision, and we have no doubt that the indictment which alleges a scienter, is sufficient without the allegation that the intent was a felonious one. The judgment is affirmed. (1) R. L. 186; Gale's Stat. 211. (2) R. L. 207; Gale's Stat. 228. |