Cease v. Wash. Cockle.

• Decision Date: 31 January 1875
• Citation: 76 Ill. 484,1875 WL 8228
• Parties: HENRY CEASEv.WASHINGTON COCKLE.
• Court: Illinois Supreme Court

76 Ill. 484

1875 WL 8228 (Ill.)

HENRY CEASE

v.WASHINGTON COCKLE.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Mason county; the Hon. LYMAN LACEY, Judge, presiding.

Mr. E. A. WALLACE, and Messrs. DEARBORN & CAMPBELL, for the appellant.

Messrs. FULLERTON & ROGERS, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, brought by Washington Cockle against Henry Cease, to recover damages for a breach of the following written contract:

Article of agreement made and entered into by and between D. W. Tamblyn & Co., and Henry Cease, all of Mason City, Illinois, of the first part, and Washington Cockle, of the city of Peoria, of the second part.

The condition of this obligation is such that the parties of the first part have, jointly and severally, sold to the party of the second part 20,000 bushels of shelled corn, to be good, dry, sound, merchantable corn, to be either white or yellow, as would be called, by competent judges, merchantable corn of either kind, said corn to be delivered on board of cars at Mason City, any time when called for up to the first of July next, at buyer's option, for the consideration of $13,000, or 65 cents per bushel, $6000 to be paid down, $2000 by the first of March next, and the remainder upon the delivery of said corn as per contract, or as fast as delivered, the buyer to give seller ten days' notice as to when he wants said corn delivered, and the buyer have cars to put the corn in as fast as he (buyer) wants. It is further agreed that the parties of the first part are not compelled to furnish more than 8000 bushels by the 1st of May next, provided it should be called for by that time, but is optional with said Cockle, at the same time, as to whether he takes any of said corn before the 1st of July, 1870.

Dated and signed this 28th day of December, 1869, at Mason City.

D. W. TAMBLYN & CO.,

HENRY CEASE,

WASHINGTON COCKLE,

Per J. L. Winters.

The firm of D. W. Tamblyn & Co. was composed of D. W. Tamblyn and J. B. McCable. Tamblyn died sometime before July 1, 1870. There having been $9300 advanced upon the contract, and only 8209 bushels of corn delivered, this action was brought May 8, 1873. Plaintiff recovered a verdict and judgment for $1347.75, and defendant appealed.

The defendant below attempted to set up in defense that he signed the contract as security for 10,000 bushels of the corn on the contract of Tamblyn & Co. to sell and deliver that amount, and that the other 10,000 bushels the defendant was to sell and deliver himself, and that Tamblyn & Co. signed the contract as his securities for the 10,000 bushels to be delivered by him; that there was a subsequent agreement between Cockle and Tamblyn & Co. that the latter should deliver their 10,000 bushels in Chicago, instead of at Mason City as called for by the contract, and that in consequence of that arrangement, defendant suffered corn to a large amount to pass out of Tamblyn & Co.'s warehouse in Mason City, in June, 1870, without objection, which he would not have done but for such arrangement. Defendant had himself delivered all of 10,000 bushels, except five car-loads, and had them ready to deliver, if plaintiff would complete the payment for 10,000 bushels; but the latter refused to make any further payment until the delivery of the 10,000 bushels agreed to be received at Chicago was made; and defendant refused to deliver...