Milk v. Moore
| Decision Date | 30 April 1864 |
| Citation | 39 Ill. 584,1864 WL 3159 |
| Parties | LEMUEL MILK et al.v.FOSTER MOORE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county.
This was a bill in chancery, filed at the Term, 1864, by Lemuel Milk and Franklin Howard, survivors of William Howard, deceased, as complainants, against Foster Moore, as defendant, to foreclose a mortgage given by the said defendant, on the 11th of June, 1851, to secure the performance of a contract, by which the said defendant took 424 head of sheep of the said complainants, to keep for the term of three years, and to deliver 634 1/2 pounds of wool each year during said term, and to return to said complainants, at the expiration of said term, the same number of said sheep, or others as good, or, in default thereof, to pay to the said complainants the sum of $634.50; and, to secure said agreement, the said defendant mortgaged to the said complainants certain real estate in Iroquois county. Said suit was commenced by filing a bill in chancery in the Circuit Court of Iroquois county, which was afterward changed by said complainants to the Circuit Court of Livingston county.
Foster Moore, the defendant, filed his answer to said bill, and therein set up a defense thereto, that said complainants, to wit, William Howard aforesaid, who was then in full life, but since deceased, fraudulently warranted and represented to the said defendant, at the time he took said sheep to keep, that they were sound and healthy sheep, and that they were not diseased, and thereby induced the said defendant to take said sheep, and enter into said agreement and mortgage; and the said defendant avers that said sheep were diseased at the time when he took them to keep as aforesaid, and, in consequence of said disease, a large portion of them died, and thereby he suffered great damage; that he delivered in wool and paid in money all the wool which said contract calls for, and that he delivered 146 head of said sheep, and paid in money $155.40, to said complainants, upon said sheep not delivered under said contract; and that, according to equity and good conscience, there remains nothing due upon said contract and mortgage. To which answer there was a replication filed.
The said defendant, by leave of the court, also filed his cross-bill, alleging, substantially, the same facts as are set up in his answer to the original bill, and claiming damages therein over and above the amount due upon the mortgage according to said contract, because a large portion of the sheep died from disease; alleging, also, that there was nothing due on said mortgage; that the amount of wool called for in said agreement had been delivered; that 146 sheep and $155.40 had been delivered and paid to said complainants; and concluding with a prayer that said mortgage might be canceled, and a decree rendered in favor of the said defendant against the said complainants for the amount which might appear to be due him over and above the amount left unpaid by him upon said contract and mortgage, for the damages which he had sustained in consequence of said sheep having been diseased as aforesaid.
To which cross-bill the said Milk and Howard filed their answer, denying that said sheep were diseased when said Moore received them, and that any portion of said sheep died from the effects of disease which said sheep had when said Moore received them; denying that said Moore suffered any damage from any disease which said sheep had when he received them; and that William Howard represented and warranted said sheep to be sound and healthy, and no disease among them as charged in said answer and cross-bill of said Moore. They admit that said Moore delivered a portion of the wool, and the payment in money for the balance of the wool not delivered, and admit that there is no wool due under said contract, and that said Moore delivered 146 sheep and the payment of $155.40 as charged in the said answer and cross-bill; but they claim that a portion of said $155.40 should be applied as interest on wool and sheep which had not been delivered according to said contract. To which answer there was a replication filed.
The cause was tried in the Livingston county Circuit Court, before the court and a jury.
There was a verdict for the defendant, and a decree in accordance therewith, dismissing the bill at the costs of the complainants. To reverse that decree this appeal is prosecuted.
Mr. GEORGE B. JOINER and Mr. JOHN M. SCOTT, for the appellants.
Mr. JAMES FLETCHER and Mr. CHESTER KINNEY, for the appellee.
This was a bill in chancery filed to...
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