25 N.E. 1000 (Ill. 1890), Capes v. Burgess

Citation:25 N.E. 1000, 135 Ill. 61
Opinion Judge:BAILEY, J.
Party Name:CAPES v. BURGESS et al. [1]
Attorney:[135 Ill. 62] Ed wards & Evans, for defendants in error.
Case Date:November 01, 1890
Court:Supreme Court of Illinois
 
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Page 1000

25 N.E. 1000 (Ill. 1890)

135 Ill. 61

CAPES

v.

BURGESS et al. 1

Supreme Court of Illinois

November 1, 1890

Error to appellate court, third district.

[135 Ill. 62] Ed wards & Evans, for defendants in error.

BAILEY, J.

Haynes, Gordon & Co., having obtained judgment in the circuit court of McLean county against Charles Capes for $2,050, and costs, and having had execution issued thereon and returned unsatisfied, sued out a writ of garnishment, and caused Robert Burgess and Charles Burgess, copartners doing business under the firm name of Burgess Bros., to be summoned as garnishees. Said garnishees, by their answer, denied having in their possession, custody, or charge, any lands, goods, chattels, moneys, choses in action, credits, or effects of said Capes, or being in any was indebted to him, but admitted, in answer to specific interrogatories in that behalf, that on or about the 8th day of March, 1886, they sold and delivered to said Capes the imported stallion Pride of Maplethorp, with [135 Ill. 63] a statement or warranty as to his qualities, said statement of warranty being as follows: 'Bill of sale of Pride of Maplethorp. This is to certify that we have sold the imported shire stallion, Pride of Maplethorp, to Mr. C. T. Capes of Pontiac, Ill. This also certifies that the above-mentioned stallion, Pride of Maplethorp, was imported from England on the steam-ship Lake Huron, by the Burgess Bros., of Wenona, Ill. This also certifies that the above-mentioned stallion is free from all hereditary diseases, and is a breeder; and in case said stallion proves contrary in a reasonable time, say two years, if no mishap befall him, we agree to take said stallion back and furnish the buyer another stallion of the same value as the above stallion, provided that the said stallion, Pride of Maplethorp, is returned to us in good condition. BURGESS BROS., Wenona, Ill. Dated Wenona, March 8, 1886.' Said garnishees further answered, denying that there had been any breach of said warranty, or that said stallion had proved contrary thereto, and denying that said Capes had offered to return said stallion to them in good order. The judgment creditors thereupon filed their replication, alleging that said garnishees had not truly discovered the moneys, choses in action, credits, and effects of said Capes in their hands, custody, and charge, or due or owing from them to him; and the issue thus formed being tried by a jury, a verdict was rendered finding the issues in favor of the plaintiff, Capes, and assessing his damages at $1,375. In answer to questions of fact submitted to them for a special finding, the jury also found that said stallion, at the time of his sale to said Capes by said garnishees, was not a fair average breeder; that, if he had been so, his reasonable value would have been $1,600, but, that not being a fair average breeder, his value was actually only $225. The court thereupon, after denying the garnishees' [135 Ill. 64] motion for a new trial, gave judgment in favor of said Capes, for the use of said Haynes, Gordon & Co...

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