Meyers v. Schemp

• Decision Date: 31 January 1873
• Citation: 1873 WL 8238,67 Ill. 469
• Parties: JAMES W. MEYERSv.JACOB SCHEMP et al.
• Court: Illinois Supreme Court

67 Ill. 469

1873 WL 8238 (Ill.)

JAMES W. MEYERS

v.JACOB SCHEMP et al.

Supreme Court of Illinois.

January Term, 1873.

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

This was an action of assumpsit, by James W. Meyers, against Jacob Schemp and Charles Brante, to recover the price of a brick building which had been burned. The defendants recovered judgment in the court below, and the plaintiff appealed.

Messrs. WHEAT & MARCY, and Messrs. WARREN, WHEAT & HAMILTON, for the appellant.

Messrs. ARNTZEN & RICHARDSON, and Mr. J. C. THOMPSON, for the appellees. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was indebitatus assumpsit upon the common counts, brought by appellant against appellees; pleas, the general issue and set-off. There was a trial by jury, and verdict for defendants, upon which the court gave judgment. Plaintiff brings the case to this court by appeal.

The declaration containing no special count, the plaintiff sought to recover the sum of $445, which the defendants bid for a brick building belonging to plaintiff, and put up by him for sale at auction. The sale occurred June 24, 1871, and this suit was commenced July 5, 1871. The terms of sale were not reduced to writing, hence there was much dispute about them--the plaintiff claiming and introducing evidence to the effect that the sum bid was $445, and to be cash down. While the defendants testified, themselves, and gave much corroborating testimony that, although the amount bid was as claimed by plaintiff, yet, the agreement was, that plaintiff was to take his pay in brick which were to be taken out of the building when it was taken down, at $3.50 per thousand; and it was insisted, as a defense, that if such was the agreement, the plaintiff was bound to wait a reasonable time for the brick to be prepared and delivered before bringing his suit, and that the time intervening the sale and the suit was not reasonable for that purpose; so that the suit was prematurely brought. If the jury so found, it would be a good defense. The defendants would be entitled to a reasonable time to prepare the brick for delivery before they could be considered in default; and, besides, if the amount bid was to be paid in anything but money, no action could be sustained upon the common counts.

Indebitatus assumpsit will not lie where the agreement is not for the payment of money, but for the doing of some other thing. The action, in such case, must be special. Spratt v. McKinney 1 Bibb, 595; Brookes v. Scott, 2 Munf. 344; Cochran v. Tatum, 8 Mon. 405; Snedicor v. Leachman, 10 Ala. 330; Burrall v. Jacot, 1 Barb. 165.

The contract, being verbal,...