Elder v. Hood
Illinois Supreme Court
Writ of Error to the Circuit Court of Randolph County; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit commenced in the court below by Archibald Hood against Francis Elder at the August Term 1862. The declaration contained the common count, only, for real estate sold and conveyed. Defendant plead 1st, general issue; 2nd, payment; 3d, satisfaction.
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Writ of Error to the Circuit Court of Randolph County; the Hon. Silas L. Bryan, Judge, presiding. This was an action of assumpsit commenced in the court below by Archibald Hood against Francis Elder at the August Term 1862. The declaration contained the common count, only, for real estate sold and conveyed. Defendant plead 1st, general issue; 2nd, payment; 3d, satisfaction. Upon a trial the plaintiff offered in evidence an agreement signed by the plaintiff and defendant, dated May 10, 1861, showing that Elder sold and assigned to Hood the exclusive right and liberty of making, constructing,…
1Opinion of the CourtChief Justice Walker
It is objected that the count should have been special on this contract, and that a recovery could not be had under the common count. As regards unexecuted contracts, such is the undoubted rule; but the practice is well settled, that when an agreement has been performed in all of its parts, except the payment of the money, by one of the parties, the other may sue and recover under the appropriate common counts. This rule is familiar, and it is believed to be of general, if not uniform application. When, therefore, defendant in error executed the conveyance for the land, he had fully performed…
2Cited by8 opinions
- Nugent v. TeachoutMichigan Supreme Court · 1887
- Dickson v. TurnerAppellate Court of Illinois · 1909
- Gottschalk v. SmithAppellate Court of Illinois · 1894
- Hartford Life Insurance v. ShermanAppellate Court of Illinois · 1905
- Hill v. Fruita Mercantile Co.Supreme Court of Colorado · 1908
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