Buntain v. Dutton
Illinois Supreme Court
This was an action of assumpsit on a promissory note, brought by Dutton against Buntain, The declaration contains a special count upon the note and the usual common counts.
Read the full summary
This was an action of assumpsit on a promissory note, brought by Dutton against Buntain, The declaration contains a special count upon the note and the usual common counts. The defendant pleaded the general issue, with notice that he would give in evidence that the note sued upon was given for a reaper and mower, which was the sole consideration for which it was executed; that the plaintiff, by his agent, warranted and agreed that the machine should do good work, and that it proved to be wholly worthless and would not work as warranted, and that, therefore, the consideration had wholly…
1Opinion of the CourtBreese, J.
The idea seems to be entertained by the appellant’s counsel, that the promise on the part of Davis, the agent of the plaintiff, Dutton, to adjust fast gearing to the reaping machine, was a new and independent contract, superseding the' original contract, and that as he did not so adjust it, he has no right to recover on the note. It should be borne in mind that this promise of the agent was wholly gratuitous, without any consideration whatever, and in no sense binding—it was, nudum, pactum. It is proved conclusively by the testimony of Fergus M. Blair, who was introduced by the defendant, the…
2Cited by1 opinion
- D. M. Osborn & Co. v. StanleyIllinois Supreme Court · 1864