Cottingham v. Owens

• Court: Illinois Supreme Court
• Writing for the Court: SHELDON
• Citation: Cottingham v. Owens, 71 Ill. 397, 1874 WL 8683 (Ill. 1874)
• Decision Date: 31 January 1874
• Parties: WILLIAM H. COTTINGHAM et al.v.RILEY V. OWENS et al

71 Ill. 397

1874 WL 8683 (Ill.)

WILLIAM H. COTTINGHAM et al.

v.RILEY

v. OWENS et al

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of DeWitt county; the Hon. LYMAN LACEY, Judge, presiding. Messrs. MOORE & WARNER, for the appellants.

Mr. E. H. PALMER, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, brought by Owens, Strain, Peck and Barber, the appellees, against Cottingham and Lake, the appellants, to recover $400 claimed to have been paid by the former to the latter, upon a certain contract for the sale of hogs, made between the parties, and which appellants had refused to execute. The plaintiffs recovered a verdict and judgment for $481.14, and the defendants appealed.

It is first objected that there is no right of recovery, because of the misjoinder of plaintiffs. The contract under which the money was paid was in writing, commencing thus: “Article of agreement entered into by and between Lake and Cottingham, of the first part, and Strain and Owens, by Barber and Peck, second part,” and is signed “Strain and Owens, per Peck and Barber;” and it is insisted the suit should have been in the names of Strain and Owens alone.

The action is not brought upon the contract, but for money had and received, the declaration containing simply a general indebitatus assumpsit count. The proof was, that Barber entered into the contract for the plaintiffs; that the plaintiffs received the first 100 hogs and paid for them, and that the plaintiffs paid the money sued for. We are of opinion that, under the evidence, the action for money had and received may be maintained in the name of the plaintiffs, notwithstanding the form in which the contract was entered into.

The breach of contract claimed is, in not delivering, on January 3, 1870, 100 hogs of the weight and quality required by the contract. The full number of hogs appellants offered to deliver, but appellees refused to accept them, because they did not meet the requirement of the contract. And appellants next insist that the clear preponderance of evidence was, that the hogs tendered were of the required weight and quality. The testimony in this respect was conflicting, and we do not think the finding of the jury upon the point should be disturbed.

It is next objected that the evidence fails to show that the appellees were ready and willing to comply with their part of the contract on January 3, 1870,...