Kimball v. Citizens' Savings Bank.

A failure to except to the judgment in the court below is not a waiver of the error: Richeson v. Ryan, 14 Ill. 74; Thayer et al. v. Finley et al. 36 Ill. 264; Kern v. Zink, 55 Ill. 449; Stuart v. The People, 3 Scam. 395; Sloo v. State Bank, 1 Scam. 428.

Messrs. DONOVAN & CONROY, for defendant in error; that the court had a right to try all the issues in the case, cited Campbell v. Head, 13 Ill. 122; Butler v. Mehrling, 15 Ill. 488; Hopkins v. Ladd, 35 Ill. 178.

No motion for a new trial was made and no exception taken, and this court cannot inquire into the finding of the court below: Lawson v. Langhaus, 85 Ill. 138; Nimmo v. Kuykendall, 85 Ill. 476; Reichwald v. Gaylord et al. 73 Ill. 503; Choate v. Hathaway, 73 Ill. 518; Bills v. Stanton, 69 Ill. 51; Law v. Fletcher, 84 Ill. 45; Boyle v. Levings, 28 Ill. 314; Pottle v. McWorter, 13 Ill. 454; St. L. A. & T. II. R. R. Co. v. Dorsey, 68 Ill. 326; Culver v. Hide and Leather Bank, 78 Ill. 625; Gardner etal. v. Russell, 78 Ill. 292; Parsons v. Evans, 17 Ill. 238; Force M'f'g Co. v. Horton et al. 74 III. 310; People v. Green, 54 Ill. 280; Prout et al. v. Grout et al. 72 Ill. 456; McPherson v. Nelson, 44 Ill. 124; Kern v. Strasberger, 71 Ill. 303.

TANNER, P. J. In this case the defendants in error sued out a writ of replevin in the Circuit Court of Jackson county, Illinois, for one hundred and thirty tons of pig iron, then in the hands of plaintiff in error. The writ was duly executed and the property delivered to the defendant in error. The declaration contains two counts: one for the unlawful taking, the other for the unlawful detaining of the above described property. To this declaration, plaintiff in error filed four pleas, viz: 1. Non cepit. 2. Non detinet. 3. That the Big Muddy Iron Company was owner of the property described in the declaration. 4. That said property was held under certain writs of attachment and special executions, fully set forth in the record. Demurrers were filed to the third and fourth pleas, and were overruled, and leave granted defendant in error to reply. The plaintiff

Kimball v. Citizens' Savings Bank.

in error, by leave, then filed a plea of former adjudication. To this last plea a demurrer was filed by defendant in error and overruled by the court. The defendant in error declined to plead further in the cause, and thereupon judgment was rendered in the following words: "It is considered and adjudged by the court that said plaintiff take nothing by his suit, and that the defendant go thereof without day, and that the defendant do recover against the plaintiff his costs and charges by him about his defense, in this behalf expended, to be taxed herein, and that he have execution therefor." The plaintiff in error brings the case to this court, and alleges that the court erred in not rendering judgment for the return of the property.

On the state of pleadings presented by the record, the court should have awarded a return of the property. The defendant in error in the first place filed a general demurrer to the 3d and 4th pleas; the demurrer was overruled, and leave was given to reply, but no replication was filed. The record, however, stood open in this respect down to the time the defendant in error filed his 5th plea. The court overruled a demurrer to this plea, as well as to the 3d and 4th pleas. The defendant in error then announced that he would "stand by his demurrer to the pleas, and that he did not wish to plead further." At this point he had not taken issue upon any of the pleas. By the demurrer the facts set out in the 3d, 4th and 5th pleas were admitted to be true, and the court in overruling the demurrer, declared the law to be with the plaintiff in error. When the defendant announced that he stood by the demurrer, and did not wish to plead further, he declined to take issue on any of the pleas interposed to the action. It was then the duty of the court, if any of the pleas presented a complete bar to the action, to enter final judgment for the plaintiff in error. Bissell v. City of Kankakee, 64 III. 249; Smith v. Dysart 12 Ill. 458; Dana v. Bryant, Geo. 104.

We have carefully looked into the several pleas to which demurrers were sustained, and have no hesitation in holding that the court was required to enter final judgment for the plaintiff in error. The statute provides that: "If the plaintiff in an action of replevin fails to prosecute his suit with effect, or

Morgan & Co. v. Thetford.

suffers a nonsuit or discontinuance; or if the right of property is adjudged against him, judgment shall be given for the return of the property, and damages for the use thereof from the time it was taken until the return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment shall be given against him for costs and such damages as the defendant shall have sustained; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held with proper damages, within a given time, or make return of the property." Rev. Stat. 1874, 853, § 22.

Under this statute and the state of the pleadings, the Circuit Court should have awarded a writ of retorno habendo. For this omission the judgment will be reversed and the cause remanded with leave to the plaintiff in error to move the court for a judgment upon the record in accordance with the foregoing views. Reversed.

D. S. MORGAN & Co.

v.

JAMES THETFORD.

CONTRACT OF SALE-RESCISSION. A party seeking to rescind a contract for the sale of a machine, on the ground that it did not work as warranted, must return or offer to return it within a reasonable time after he discovers its defects. He cannot use the machine through the whole season, lay it aside, and then defeat a recovery of the contract price on the ground that it did not work well.

ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Messrs. BARR & LEMMA, for plaintiffs in error; that a party seeking to rescind a contract must place the opposite party in statu quo, cited Buchanan v. Harney, 12 Ill. 336; Smith v. Doty, 24 Ill. 165.

Morgan & Co. v. Thetford.

He cannot keep the goods an unreasonable length of time: Story on Sales, § 426.

The machine not being returned, the vendor was entitled to recover its reasonable value, notwithstanding the warranty: Owens v. Sturges et al. 67 Ill. 366.

If the defect was unimportant, or could easily have been remedied, the defendant is still liable: Morgan v. Collins, 19 Ill. 126.

Mr. WILLIAM J. ALLEN, for defendant in error; that the contract might be rescinded, cited 2 Chitty on Contracts, 1089; Addison on Contracts, 504.

ALLEN, J. This suit was brought by plaintiff on a promissory note executed by defendant to plaintiff, for a reaper and mower combined. Defendant sets up by way of bar to a recovery on the note, a warranty and failure of the conditions of the warranty. A trial was had in the Jackson Circuit Court, before a jury; verdict for defendant. A motion for a new trial was made by plaintiff, which the court overruled, and rendered a judgment against plaintiff for costs. Among other errors assigned on the record, is the refusal of the court to grant a new trial. The evidence discloses the fact that the reaper cut well, but that the rake worked badly. That after the plaintiff's agent had been notified, he re-adjusted the rake, and after cutting about half an acre the defendant seemed to be satisfied, and executed the note sued on, and paid $5 in money to pay freight on the machine. That defendant continued to use the reaper until he completed his harvest, and that afterwards he notified plaintiff's agent that the machine did not work well. The only complaint seemed to be that the rake did not properly rake off the grain. If the defendant desired to rescind the contract, it was his duty to return or offer to return the machine, within a reasonable time after he discovered its defects; in this way he might have exonerated himself from the payment of his note, having done all he could do or was required to do to place the plaintiff in statu quo. Buchanan v. Harney, 12 Ill. 336; Smith v. Doty, 24 Ill. 163; Story on

Morgan & Co. v. Thetford.

Sales, § 426. Defendant having failed to return or offer to return the reaper, the contract price, or if there was a partial failure of consideration to pay, he became liable to pay plaintiff whatever the reaper was worth. The expense of repairing and adjusting the rake, or even procuring a new one, or new attachments to work the rake, would be small compared with the value of the reaper itself, if it cut well (and the evidence shows that it did). As a mower the evidence shows its value at from $75 to $125, and although the defendant says he never received the mowing attachment, yet he fails to show that he ever called for it, or that it would not have been furnished if demanded. So that in any light in which we can view this testimony, the plaintiff was entitled to recover something. Defendant could not use the reaper through his harvest, lay it aside and say it did not work well, and I will neither return it or pay anything for it.

Neither the terms of the warranty or the law of the land would permit him to do this. We repeat, he must in a reasonable time return or offer to return the reaper, or hold himself responsible for the contract price or its value, whatever that may be. The evidence shows its value as a mower alone to be greatly beyond what defendant advanced for payment of the freight upon it. Under the evidence the verdict should have been for plaintiff for the contract price or the value of the property, and the court erred in refusing to set aside the verdict of the jury and to grant a new trial.

Judgment of the Circuit Court reversed and cause remanded. Reversed and remanded.