Pierce v. Hasbrouck
| Decision Date | 30 September 1868 |
| Citation | 1868 WL 5168,49 Ill. 23 |
| Parties | DANIEL PIERCEv.MARY C. HASBROUCK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of De Kalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.
This was an action of trover, brought by the appellee, Mary C. Hasbrouck, in the court below, against the appellant, Daniel Pierce, and tried at the February term, 1866, of said court, and which trial resulted in a verdict for the plaintiff. A motion for a new trial was made, which the court overruled, and rendered judgment on the verdict, to reverse which, the cause is brought to this court by appeal. The further facts in the case are stated in the opinion.
Mr. R. L. DIVINE, for the appellant. Mr. CHARLES KELLUM and Mr. B. F. PARKS, for the appellee.
Hasbrouck and wife delivered to Pierce a mortgage upon four horses, two sets of harness, and a wagon, to secure the payment of a note for $300, held by the latter against Hasbrouck. Before the mortgage matured, the mortgagors let Pierce have a span of horses to apply thereon at $280. The plaintiff claims that the price of the horses was $300, but that they deducted $20 from the price, in consideration of an agreement by Pierce to extend the time for the payment of the residue of the debt from two to three months. This agreement is denied by the defendant.
Before the expiration of two months after the maturity of the mortgage, Pierce took possession of another pair of horses, harness and a wagon, under the mortgage, and thereupon the plaintiff, Mrs. Hasbrouck, having tendered to Pierce $55, admitted to be the balance due upon the note, demanded a return of the property. This was refused, and she brought this action of trover.
It is manifest, the action turns upon whether there was a valid extension of time upon the mortgage, that is, an agreement to extend for a valuable consideration. If the mortgagors abated $20 from the price of the first pair of horses, in consideration of such an agreement to extend, the consideration would be valuable and the agreement binding. This was the question submitted to the jury by the second instruction for the plaintiff, and though that instruction was carelessly drawn, and is awkward in its construction, it can hardly have misled the jury. They must have understood, from the course of the evidence, that this was the question upon which the case hinged. We are not willing to reverse the judgment merely because this instruction was not well expressed, as its true meaning can not have been mistaken.
It is also urged that the instruction in regard to the measure of damages is wrong, on the ground that if the plaintiff was only tenant in common with her husband, the damages should have been apportioned, instead of allowing the plaintiff to recover the full value of the property. But the evidence shows very clearly that there was no tenancy in common. The property belonged either wholly to the husband or wholly to the wife. The instruction, therefore, worked no harm. If the plaintiff was entitled to recover at all, she...
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