Chumasero v. Gilbert

• Decision Date: 30 April 1860
• Parties: EDWARD B. CHUMASERO, Appellant,v.HORATIO G. GILBERT, Appellee.THE SAME, Appellant,v.THE SAME, Appellee.
• Court: Illinois Supreme Court

24 Ill. 651
1860 WL 6488 (Ill.)
14 Peck (IL) 651

EDWARD B. CHUMASERO, Appellant,
v.
HORATIO G. GILBERT, Appellee.THE SAME, Appellant,
v.
THE SAME, Appellee.

Supreme Court of Illinois.

April Term, 1860.

APPEAL FROM LA SALLE COUNTY COURT.

The lex fori must govern the rate of interest recoverable on a contract, which does not state the interest to be paid; and if a greater rate of interest is sought, there must be averment and proof to justify it.

Exchange cannot be recovered, where there is not an agreement to pay it.

THESE were actions of assumpsit, commenced in La Salle County Court, by the appellee against the appellant, and tried at the September term, A. D. 1859, before CHAMPLIN, Judge, a jury having been waived by agreement of the parties. Judgments were rendered against the appellant.

The declarations each contained a special count upon notes, which were payable without defalcation, for value received, at the Broadway Bank of New York City. The declaration also contained the common counts. There was not any averment relative to exchange.

The appellant filed a plea of the general issue.

The appellee offered in evidence a copy of the notes, and then offered to prove, and the appellant admitted the fact to be, that at the time the notes became due, exchange on New York City was one and a half per cent.; but said appellant, at the same time, objected to the introduction of said testimony, which objection was overruled by the court.

The court found for the appellee, and assessed his damages at $711.89.

CHUMASERO & ELDREDGE, for Appellant.

B. C. COOK, for Appellee.

WALKER, J.

This court held, in the case of Chumasero v. Gilbert, 24 Ill. 293, that the lex fori must govern the rate...