Biederman v. O'Conner

Citations

• 117 Ill. 493
• 7 N.E. 463

Syllabus

<p>1. Arrest 03? judgment—on ground of immaterial issues. Judgment •will not be arrested, on motion of the plaintiff, on the ground that certain special pleas present immaterial issues, if the general issue has also been filed, and the finding of the jury is general, in favor of the defendant.</p> <p>2. Evidence—as to delivery of contract—presumption—evidence in rebuttal. The possession of a contract or written obligation by the vendee or obligee therein named, affords presumptive evidence of its delivery to him, but it is not.conolusive; and evidence tending to prove fraud in obtaining the possession of the writing, or to show that it was not in fact delivered, is always admissible.</p> <p>3. Contract—want of delivery—fraudulent possession. A party signed a contract for the sale of a quantity of corn at a stated price, to be delivered in the future, upon the understanding that he was to have $1000 paid down. The purchaser took possession of the contract without paying anything, the maker, objecting and protesting, and it was finally agreed between them that if the $1000 was paid by eight o’clock of the next morning, the contract was to hold good, otherwise not. In the morning no money was produced, but a check was tendered, and refused, the drawer not having funds in bank to meet it: Held, that the contract never became binding, for want of delivery, and that the possession of the same was fraudulent.</p> <p>4. Pleading and evidence—proof under the general issue. Under the general issue in an action ex contractu, the defendant may give in evidence anything which tends to show that the plaintiff never had any cause of action. So he may show that the instrument sued on never became a valid contract for want of delivery, or on account of non-performance of a condition precedent to its taking effect; and such evidence does not vary or change the terms of a written contract.</p> <p>5. Consideration—extension of time for payment. Where a contract is made for the sale of