7 200 71 74

Neimeyer v. Knight.

SAMUEL NEIMEYER

V.

JAMES KNIGHT ET AL.

APPELLATE JURISDICTION-FREEHOLD.-This was an action to set aside and declare void a certain deed, and as it involves the question of a freehold this court has no jurisdiction of the appeal.

APPEAL from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding. Opinion filed September 29, 1880.

Mr. C. A. ROBERTS, for appellant.

Mr. A. B. SAWYER and Messrs. GREEN & COHRS, for appellees.

PER CURIAM. This was a bill in chancery brought by appellants against appellees, to cancel and declare void and of no effect a deed made by appellant to appellee Knight, conveying certain lands in fee.

The bill prays that the deed be cancelled, and that complainant be restored to the title and possession of the premises. A demurrer was sustained to the bill, and a decree rendered dismissing the same at complainant's costs, from which an appeal is prosecuted to this court.

The case involves a freehold, and this court has no jurisdiction to hear and determine it. The appeal should have been to the Supreme Court. Board of Trustees v. Carrie Beal, 6 Bradwell, 536; and Fitzgerald v. Fitzgerald, ante 191, decided at the present term of this court.

The appeal is dismissed.

Appeal dismissed.

Manton v. Gammon.

JAMES MANTON

V.

ELIJAH GAMMON ET AL.

1. SALE ON CREDIT-PAYMENT BY NOTE.-Where goods are sold and delivered, to be paid for by note or bill payable at a future day, and the note or bill is not given, the vendor cannot maintain assumpsit on the general count for goods sold and delivered, until the credit has expired, but he may sue immediately for a breach of the special agreement.

2. CONSOLIDATION OF CLAIMS.-The vendor cannot, upon a failure to give notes as agreed, payable at different dates, bring suit for breach of the contract as each installment becomes due, for the breach of the contract is entire, namely, the failure to give the notes, and if he brings such suit before a justice of the peace, he is obliged to bring forward all his claims arising under a breach of the contract in that suit, and judgment therein is a bar to any subsequent proceeding brought to recover the amount of the second installment.

APPEAL from the Circuit Court of Pike county; the Hon. S. P. SHOPE, Judge, presiding. Opinion filed September 29, 1880.

Mr. J. S. IRWIN, for appellant; that where payment is to be made by note, payable at a future day, an action may be maintained immediately as for goods sold, upon refusal to execute the note, cited Story on Sales, § 236; 2 Parsons on Contracts, 485; Partridge v. Gildermeister, 38 N. Y. 93; Johnson v. Smith, Anthon's Nisi Prius, 81; Musson v. Price, 4 East 147; Dutton v. Solomonson, 3 Bos. & Pul. 582; Hutchinson v. Reed, 3 Camp. 329; Hanson v. Mills, 21 Wend. 90; Rhinehart v. Olwine, 5 Watts & S. 157.

The measure of damages is the value of the goods: 3 Parsons on Contracts, 210; Hanson v. Mills, 21 Wend. 90; Rhinehart . Olwine, 5 Watts & S. 157; Smith v. Jones, 15 Johns, 229; Miller v. Covert, 1 Wend. 487.

Where the causes of action are all matured, and when consolidated will not exceed $200, they must, in an action before a justice of the peace, be consolidated: McCoy v. Babcock, 1

Manton v. Gammon.

Bradwell, 415; Rev. Stat. 1874, 645; Buckner v. Thompson, 11 Ill. 563; Casselberry v. Forquer, 27 Ill. 170; Mallock v. Krome, 78 Ill. 110; Willard v. Sperry, 16 Johns, 131.

A party cannot split his demands: Camp v. Morgan, 21 Ill. 255; Casselberry v. Forquer, 27 Ill. 170; Nickerson v. Rockwell, 90 Ill. 460; Williard v. Sperry, 16 Johns, 121.

Although a court may reject a claim as inadmissible, yet, if in fact it ought to have been admitted, the judgment unless reversed, is a bar to another suit for the rejected claim: Freeman on Judgments, § 269; Burwell, v. Knight, 12 Md. 535; Burnett v. Smith, 4 Gray, 50; Grant v. Butler, 14 Johns, 377; Morgan v. Piumb, 9 Wend. 287; Baker v. Rand, 13 Barb. 153; Fish v. Miller, 20 Tex. 579; Hamilton v. Quimby, 46 Ill. 90; Keokuk v. Alexander, 21 Iowa, 377.

Messrs. MATTHEWS, WIKE & HIGBEE, for appellees; that when goods are sold to be paid for by note payable at a future day, the vendor can sue immediately for a breach of contract, or wait until the credit has expired, and maintain assumpsit on the general counts, cited Hanna v. Mills, 21 Wend. 90; Story on Sales, 236; Gale v. Coddington, 21 Wend. 175; Partridge v. Gildermeister, 1 Keys, 97; Hutchinson v. Reid, 3 Campbell, 329; Dutton v. Solomon, 3 Bos. & Pul. 586; Hoskins v. Duperoy, 9 East. 498; Mussen v. Price, 4 East. 147; Lee v. Decker, 6 Abb. N. S. 393; Van Horn v. Burroughs, 62 Ill. 388; Benjamin on Sales, 659; 1 Chitty on Contracts, 615; 1 Chitty's Pl.

347.

If the credits fall due at different times, they can be sued for as fast as they become due: Hamlin v. Race, 78 Ill, 422; Grimfield v. Nash, 31 Miss. 361; Secor v. Sturgis, 16 N. Y. 548; McConnell v. Kibbe, 33 Ill. 176; Jones v. Lavender, 55 Ga. 226; Crabtree v. Hagenbaugh, 25 Ill. 233; O'Brien v. Lloyd, 43 N. Y. 248; 1 Chitty's Pl. 116.

A recovery for one installment in an action brought for the recovery of two, where one is not due, is not a bar to a subsequent action for the second when it shall become due: Bigelow on Estoppel, 33; Nickerson v. Rockwell, 90 Ill. 460; Kane v. Fisher, 2 Watts 246; Crabtree v. Wells, 19 Ill. 55; Sheldon

Manton v. Gammon.

v. Edwards, 35 N. Y. 287; Wilcox v. Lee, 1 Abb. N. S. 250; Johnson v. White, 21 Miss. 287; Grant v. Pratt, 6 Minn. 2; McFarless v. Cushman, 21 Wis. 401; Gray v. Dougherty, 25 Cal. 260; Freeman on Judgments, § 268.

And especially when, as in this case, the second installment has been withdrawn and not passed upon by the jury: Wood v. Carl, 4 Met. 203; Miller v. Maurice, 6 Hill, 121; Russell v. Place, 94 U. S. 608; Bigelow on Estoppel, 94.

The apportionment of costs would be in the discretion of the court: Wickersham v. Hurd, 72 Ill. 464; Lee v. Quirk, 20 Ill. 392.

MCCULLOCH, P. J. This suit was tried in the circuit court, upon the following agreement:

It is hereby stipulated and agreed between the parties to this suit, as follows:

1st. That this stipulation may be given in evidence upon any trial of the cause, as a statement of the facts in the case. 2nd. That such facts are as follows: On the 26th day of April, A. D. 1876, James Manton executed to plaintiff his certain agreement in writing, as follows:

"ORDER FOR MARSH HARVESTER. GAMMON & DEERING, Agents for Marsh Harvester: You will please ship to me from the factory to Pittsfield, care of J. F. Bean, on or before the first day of June, 1876, one Marsh Harvester, for which I agree to pay you or your agent, in cash and notes, on the trial of the machine, one hundred and ninety dollars, as follows: cash, $-; note for $95, due Oct. 1st, 1876; note for $95, due Oct. 1st, 1877, with interest at ten per cent. per annum, with a reduction of three per cent. if paid at or before maturity, transportation upon its delivery, providing the machine answers the following warranty, but if it does not after notice and trial as stipulated in warranty, I will deliver it free of charge to the above place of delivery.

"Dated 26th April, 1876."

"JAMES MANTON. "J. F. BEAN, Agent.

Which instrument in writing he then and there delivered to

Manton v. Garnmon.

James Bean, who was then and there the agent of the plaintiffs, and then and there authorized to make and accept such contract upon the part of plaintiffs.

That on the 3d day of June, 1876, the machine mentioned in said agreement, shipped by plaintiffs, arrived at the depot at Pittsfield, to the order of said Manton, who paid freight on the same, and who took the machine home with him. That said Manton, on the first day of July, 1876, made a trial of said machine on his farm, and not being satisfied with said machine, on the same day notified the agent, Bean, that he would not receive or pay for said machine, or execute his notes for the same, as mentioned in said written agreement; that said Manton did not return said machine to plaintiffs, but kept and used the same as his own, and that said defendant never executed his said notes to plaintiffs, as mentioned in said agreement. That on the 6th day of March, A. D. 1877, suit was commenced on said written agreement by plaintiffs, before D. W. Greene, a justice of the peace of Pike county, to recover the above amount of money mentioned therein; that is, for all the installments mentioned therein, and including the installment sued for in this case, and that on the 16th day of March, 1877, being the day of trial, plaintiffs, by the judg ment of said court, recovered of said defendant, in said suit, the sum of $199.25, being for the sum due on said written agreement, including the installment now sued for. It is further agreed that no question shall be raised or controverted as to the sufficiency of said machine to perform its work according to contract, or the regularity of said judgment, or the jurisdiction of said justice.

It is also agreed that the judgment of said justice was regularly appealed from to the Circuit Court of Pike county, Illinois, and that within twenty days thereafter the defendant filed his appeal bond, and said case was taken by appeal to the circuit court of said county, to the November term, A. D. 1877, and that at said term of said court, both plaintiffs and defendants being present, and said cause coming on to be heard before a jury, the plaintiff offered in evidence said written agreement, and asked judgment for the whole sum of money mentioned