Jacquin v. Warren
| Citation | 40 Ill. 459,1866 WL 4514 |
| Parties | JOSEPH JACQUINv.GEORGE S. WARREN. |
| Decision Date | 30 April 1866 |
| Court | Illinois Supreme Court |
APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.
The opinion of the court contains a sufficient statement of the case.
Messrs. INGERSOLLS & PUTERBAUGH, for the appellant.
This was an action upon a due-bill given for the unpaid balance of the contract price of a lot of corn purchased by the maker from the plaintiff. The corn had been only constructively delivered, in cribs, and after a portion of it had been taken away by the buyer, the seller notified him that he could have no more of it, and in this claim of the seller to control the corn, the buyer acquiesced. The only question presented on the merits of the case is, whether the seller can recover on the due-bill after refusing to let the maker have the corn for which it was given.
In all cases whatever, a promisor will be discharged from all liability when the non-performance of his obligation is caused by the act or fault of the other contracting party. 2 Parsons on Cont. (5th ed.) 676; Phillpolts v. Evans, 5 M. & W. 477; Ripley v. McClure, 4 Exch. 345; Leigh v. Paterson, 2 J. B. Moore, 588.
Generally, as a contract can be made only by consent of all the contracting parties, it can only be rescinded by the consent of all. But this consent need not be expressed as an agreement. 2 Parsons on Cont. 677, 678. The rescission by one party may be as strongly expressed by acts as by words. Goodrich v. Lafflin, 1 Pick. 57; Hill v. Green, 4 Id. 114.
If either party, without right, claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent, nor need this purpose of rescinding be expressly declared by the one party in order to give to the other the rights of consenting, and so rescinding. There may be many acts from which the opposite party has a right to infer that the party doing them would rescind. 2 Parsons on Cont. (5th ed.) 658, 678, and cases there cited; Goodrich v. Lafflin, 1 Pick. 57; Hill v. Green, 4 Id. 114.
Messrs. JOHNSON, HOPKINS & CHITTY, for the appellee, contended that the corn was sold and delivered, and the title vested in the buyer, and that any subsequent notice by the seller to the buyer not to remove the corn, was wholly nugatory as to the rights of either of them. The buyer had no right to treat the contract as rescinded by such a notice, as a contract cannot be rescinded after it is executed. Mr. JUSTICE BREESE delivered the opinion of the Court:
This was an action of assumpsit brought in the Woodford Circuit Court by George S. Warren against Joseph Jacquin, and a verdict and judgment for the plaintiff.
The declaration in the first and second counts, counted on the following due-bill:
+-------------------------------+
¦“$525.¦CONGER, August 23, 1865.¦
+-------------------------------+
Due G. S. Warren on corn five hundred and twenty-five dollars.
J. JACQUIN.”
The common counts were added.
The pleas were, the general issue; failure of consideration in whole and in part; breach of warranty; failure to deliver corn under the contract; tender; payment; to all which were replications and issues joined. There was a trial by jury and a verdict for the appellee for three hundred and ninety-five dollars. When the due-bill was offered in evidence it was objected to by defendant for the reason it had no revenue stamp, but the objection was overruled and exception taken. A motion for a new trial was made and overruled and judgment on the verdict for the plaintiff, from which the defendant has appealed to this court.
The following are the errors assigned:
The Circuit Court erred in admitting the due-bill in evidence, the same not being stamped as required by law. The court below admitted improper evidence. The court gave improper instructions for plaintiff. The court below erred in refusing instructions numbers one and two, asked by defendant. In modifying instructions numbers three and six, asked by defendant. In overruling motion for a new trial, and in giving judgment on the verdict of the jury.
Upon the first error assigned it is sufficient to say, that the paper offered in evidence bears a revenue stamp, and though perhaps not adequate to the character of the paper, it was the fault and omission of the defendant who made the due-bill, that it was not, and he should not be allowed to take advantage of his own wrong and default. The paper was a negotiable promissory note under our statute, and should have been stamped as such. Stewart et al. v. Smith, 28 Ill. 397.
But if it was the duty of the court to exclude the due-bill from the jury, still the common counts remained, and the evidence was received to sustain them. Israel v. Redding, 40 Ill. 362, and cases there cited.
The next error assigned, that improper evidence was admitted, without averring it was against appellant, is abandoned.
As to the instructions given on behalf of the appellee and exception taken by appellant, and in regard to those asked by appellant and refused, it is sufficient to say, from the view we have taken of the case, it is unnecessary to consider and dispose of them.
We have considered the case on the refusal of the court to set aside the verdict and grant a new trial, and this involves an examination of the evidence which is all preserved in the record.
The facts are, substantially, that appellee, in August, 1865, being the owner of certain cribs of corn, went to appellant to sell them to him; appellant wished to buy and offered forty cents a bushel; appellee wished to sell the whole lot together, and after getting the dimensions of the cribs as given to him by appellee, and casting up the amount of corn the cribs would contain, which was about 1,700 bushels, appellant offered appellee six hundred and fifty dollars for the whole lot; appellee offered to take six hundred and...
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Kessler v. Clayes
...stated. McGowen v. West, 7 Mo. 569; Finney v. Shirley, 7 Mo. 42; Brady v. Chandler, 31 Mo. 28; Brainard v. Capelle, 31 Mo. 428; Jacquin v. Warren, 40 Ill. 459; Franklin v. March, 6 N.H. 364; Locher Kuechenmiester, 120 Mo.App. 701. (b) But this action originating in probate court where no pl......
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