Demesmey v. Gravelin

• Decision Date: 30 September 1870
• Citation: 1870 WL 6480,56 Ill. 93
• Parties: JOSEPH DEMESMEYv.CELESTIN GRAVELIN.
• Court: Illinois Supreme Court

56 Ill. 93

1870 WL 6480 (Ill.)

JOSEPH DEMESMEY

v.CELESTIN GRAVELIN.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.

This action was brought by Gravelin against Demesmey, to recover money paid by the former to the latter on a contract for the purchase of land. The plaintiff, basing his right of recovery on a breach of the contract on the part of the defendant, declared on the common counts, but failed to allege any promise to pay the sums mentioned in the several counts, except as to the amount on an account stated, and the defendant insists that the plaintiff must recover, if at all, on that count; that the testimony, if it would support a verdict at all, would not on that count; and denies there was any breach of the contract on his part. The defendant did not hold the legal title to the land, but procured one Jarvis and others to execute deeds for the lands to the plaintiff, which deeds, as the plaintiff testifies, were left in the hands of LeMoine, the attorney who drafted them, until the proper examination could be made to satisfy the plaintiff that they conveyed the title.

Messrs. LAKE & LORING, for the appellant.

Mr. W. A. RICHARDSON and Mr. T. P. BONFIELD, for the appellee. Mr. JUSTICE THORNTON delivered the opinion of the Court:

This is an action of assumpsit. The declaration contains the count for money had and received. The general issue was filed, and plaintiff recovered a verdict for $680. The alleged insufficiency of the declaration is cured by verdict.

The testimony of the plaintiff is, that he purchased a tract of land of defendant; was to have a good title; and paid on the contract $680. He further testified that LeMoine, who was selected to draft the deeds, said that the title was good. The deeds were left with LeMoine until the proper examination could be made.

The land had been inherited by four children, of the name of LeFevre. The record wholly fails to show that Edward, one of the heirs, had conveyed to any person, and, therefore, at the time of the agreement, had one-fourth interest in the land.

Demesmey contradicts the statement of Gravelin to some extent. He testified that Gravelin was to pay $3,600, for which he was to release his interest; that “Jarvis was to make a deed, and I was, as I understood it, to have nothing to do with it. There were no arrangements as to payments.” The fact that no arrangement as to...