Grove v. Miles

• Decision Date: 31 January 1871
• Citation: 1871 WL 7927,58 Ill. 338
• Parties: JONAS U. GROVEv.JONATHAN R. MILES.
• Court: Illinois Supreme Court

58 Ill. 338

1871 WL 7927 (Ill.)

JONAS U. GROVE

v.JONATHAN R. MILES.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Macoupin county; the Hon. EDWARD Y. RICE, Judge, presiding.

Messrs. RINAKER & WELCH, for the plaintiff in error.

Mr. JOHN M. PALMER, JR., for the defendant in error.

Mr. JUSTICE THORNTONdelivered the opinion of the Court:

The parties to this suit, entered into a written agreement, by the terms of which Miles agreed to sell to Grove, one-half of certain mill premises, in consideration of furnishing all necessary machinery, complete, in the mill then erected, for the running of three sets of stones.

Plaintiff in error furnished $7400, and it is averred in the bill that the completion of the mill, as agreed upon, cost $12,411.70.The bill was filed to subject the premises to sale, for the difference.

The court below rendered a decree for $3,655.20, and in default of payment, ordered that the premises be sold.

It is contended by counsel for plaintiff in error, that the bill ought not to be sustained.

We do not think the position tenable.The bill can properly be maintained, upon an old and familiar principle, which permits a vendor to file a bill to subject to sale, land sold, for the unpaid purchase money.The premises were sold, in consideration of machinery to be furnished, complete, in the mill.This includes, not only the cost of the machinery, but the labor and material necessary to place it in proper position for operation.The necessary cost of this work, above the amount paid, should be paid by plaintiff in error.We think it may fairly be regarded, as unpaid purchase money.

We can not undertake from the record, to adjust the accounts between the parties, and we are not satisfied as to the correctness of the decree.The case does not seem to have been intelligibly presented, and we think it is best that there should be a re-adjustment.

If the cost of the machinery and labor, to be furnished and performed by plaintiff in error, be correct according to the evidence and vouchers of the defendant in error, then the decree is manifestly for too small an amount.It could not, by any computation, be less than $4000.

If the cost of the completion of the mill, according to the agreement, ought not to exceed the amount of $8,855.62, as testified to by several witnesses, then the amount of the decree is clearly too large.It is therefore wholly uncertain, upon what basis the decree was made.

Without more proof, the court was not justified in fixing the expenditure at $12,000, and over.Included in that amount was about $4000, for work and labor, exclusive of machinery and material.This was ascertained from the receipts of various persons, for work on the mill, as presented by defendant in error....