Opinion of the Court. pay for the barley as they had for that before delivered, and that was, cash when they had it, and if they did not have it, give notes. One witness said they were to give notes at thirty or sixty days if they had no money. The defendant testified, the plaintiffs were to pay him for the barley as fast as each car load was delivered, and at the time the plaintiffs brought their action, they owed him, on the contract, eight hundred and seventy-one dollars ninety cents, being the value of two car loads delivered. When the suit was commenced, he had another car load in the city ready to be delivered upon the contract, and offered to deliver it to plaintiffs before the suit was commenced if they would pay him for it, and for the other two car loads. At the same time, he demanded the amount due him, which they refused to pay, and refused to pay for the car load then on hand, which he kept two weeks awaiting the plaintiffs' demand if they should conclude to pay him. He also stated that Metz, one of the plaintiffs, told him, before he commenced delivering the barley, that No. 2 delivered on the contract would be as satisfactory as No. 1; that it would answer their purpose equally as well. Several letters from the plaintiffs to defendant, of rather an apologetic tone, were in evidence. There is nothing said in the contract about payment for the barley, and the inference must be, as when any article is sold, that the money was to be paid on delivery, and this is the weight of the testimony, and plaintiffs' letters lead to the same conclusion. The parties seem to have given that construction to the contract, and we think it is the proper construction. The delivery of the grain and the payment of the money were concurrent. The uncontradicted evidence shows the plaintiffs were largely in arrears when they brought their action, and that defendant demanded payment, which they refused. The plaintiffs complain, that the court refused to give the instruction asked by them, but in lieu thereof gave the following, which they insist is erroneous: Opinion of the Court. "That if the jury believe, from the evidence, that the defendant contracted with the plaintiffs, at the time alleged, to deliver to them, at Chicago, ten thousand bushels of barley-five thousand thereof to be such as was known as No. 1, and five thousand bushels of such as was known as No. 2, at the price of one dollar per bushel, the same to be delivered so that the plaintiffs should receive thereof the quantity of one thousand bushels per week, for the ten weeks next ensuing after the making of the contract, and to be paid for after the whole was delivered;' and they further find that defendant, without any fault on the part of the plaintiffs, 'the plaintiffs being willing and ready to pay for the same,' failed to deliver all or any portion of said barley according to the terms of the contract with plaintiffs, then the plaintiffs are entitled to recover such damages as they may have shown themselves to have sustained in consequence of the failure of said defendant to keep his contract, and deliver the barley at the time specified. "If the jury believe, from the evidence, that defendant made with plaintiffs such a contract for the delivery of barley as is set forth in either of the counts of the plaintiffs' declaration, and that the plaintiffs were ready and willing to receive said barley, and pay for the same in accordance with the contract, and the defendant failed to perform his contract without fault on the part of the plaintiffs, then the defendant is liable to damages for such breach of the contract on his part, and the rate of damages is the difference between the contract price and the market value of the barley at the time the said barley should have been delivered under the contract." These instructions, we think, state the law of the case very fairly for the plaintiffs, and do not differ very essentially from the one asked. They bring fairly before the jury the true points in controversy, and were all the plaintiffs could ask. Plaintiff's also complain, that instructions numbered one, two, three, four and six, given for the defendant, are erroneous Opinion of the Court. in assuming that the contract was to pay on delivery. This, we have said, is the true construction of the contract, and it was incumbent on the plaintiffs to prove they were ready to receive and pay for the barley as delivered, and upon request for payment. The second instruction proceeds upon the ground, that if the plaintiffs, had the barley been delivered, were not prepared with the money to pay for ten thou sand bushels upon reasonable request for payment, the defendant was not in default so as to entitle the plaintiffs to claim damages for such non-delivery. This instruction but applies the doctrine applicable to cash sales, which this was, and was unobjectionable. To the third, there can be no serious objection, for, if the hypothesis thereof be correct, the plaintiffs could not recover, because they had made no such case in the declaration. The true meaning and legal effect of all the counts is, that payment was to be made on the delivery of the whole ten thousand bushels. This being so, the evidence did not support the declaration, and the attention of the jury was properly called to that point. In every case, a party suing must recover on his allegations and proofs. Instruction six is not obnoxious to the criticism applied to it. Nos. one and two barley-the copulative conjunction being used—is the kind spoken of in it, and if the quantity of each was not specified, then it was at the option of defendant how much of each kind he would deliver. From the whole record, we are of opinion justice has been done. The evidence sustains the verdict, and the instructions are right. The judgment must be affirmed. Judgment affirmed. 32-52ND ILL. 52 498 36a 616 Syllabus. THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. JOSEPH SHURTZ, v. THE COMMISSIONERS OF HIGHWAYS OF WORTH TOWN- 1. HIGHWAYS-what constitutes, so as to impose upon the public authorities the duty to keep them in repair. The third section of article 17, of the township organization law of 1861, which requires the commissioners of highways "to cause such roads, used as highways, as have been laid out but not sufficiently described, and such as have been used for twenty years, but not recorded, to be ascertained, described, and entered of record in the town clerk's office," is construed as referring to roads which have been recognized as highways by the proper authorities, and not to every road which the owner of land may have laid out for his own use, and permitted the public to travel over. 2. By such words as "are used as highways," is meant those roads whose character as highways has been established by the consent of the owners of the soil, and of the proper authorities, but of which no accurate survey and record have been made. 3. It is not enough, to bind the town or county to repair, that there has been a dedication of a public way by the owner of the soil, and the public use of it. To bind the corporate body to this extent, there must be some evidence of acquiescence or adoption by the corporation itself. 4. MANDAMUS-whether the peremptory writ may be refused. The third section of the chapter of the Revised Statutes, entitled "Mandamus,” which requires the court to award a peremptory writ in cases where a jury have found a verdict for the petitioner, refers only to cases where the petition makes a prima facie case, and the issue found by the verdict is material. The action of the court in denying the peremptory writ, notwithstanding a verdict for the petitioner, is like arresting the judgment in an ordinary action at law. APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding. The opinion states the case. Briefs of Counsel. Messrs. CLARK & CHRISTIAN, for the appellants, insisted that, under the third section of the statute on mandamus, when a jury have found a verdict for the petitioner, the court has no discretion to refuse the peremptory writ. Counsel said, that section of our mandamus act is, in all respects, substantially the same as the 2d section of chapter 20 of the statute of 9 Anne, and in passing upon the latter, Lord DENMAN, C. J. in the Queen v. The Earl of Dartmouth, 5 Q. B. 881, held that, after the issues (feigned issue) had been submitted to the jury, and a verdict rendered by the jury, the only thing left for the court to do, was to follow the plain provisions of the act; that is, if the verdict was in favor of the relator, the peremptory writ must be granted, and that without delay, provided the court could see no other remedy. Rev. Stat. Chap. 67, sec. 3; Stat. 9 Anne, Chap. 20, sec. 2. Messrs. INGERSOLL & MCCUNE, and Mr. S. D. PUTERBAUGH, for the appellees. No public highway can be established by dedication merely, and without the assent, express or implied, of the town or county bound by law to keep it in repair. Bower v. Suffolk Manufacturing Co. 4 Cush. 332; Dimon v. The People, 17 Ill. 422; Town of Lewistown v. Proctor, 27 Ill. 418; Eyman v. The People, 1 Gilm. 9. If such were not the law, any land owner might, for his own interest, and without regard to public convenience or necessity, establish a highway, and subject the town or county within which it lies, to the burden of supporting it. There can certainly be no good reason why the burden of keeping a road in repair, and of building and maintaining bridges, should be imposed upon towns without their assent, and without any opportunity to make their objections. Commissioners of highways are empowered to inquire into when and where new roads are needed, and proceed to lay out such as the public exigencies require, having due regard to private rights |