Cottingham v. Owens

Citations

• 71 Ill. 397

Syllabus

<p>1. Misjoinder of plaintiffs. Where a written contract was executed in the name of one of the plaintiffs by another of the plaintiffs, and the proof was, that, although in form it was in the name of the one, it was, in fact, executed for all the plaintiff's, and money was paid by the plaintiffs on the contract to the defendant, and the defendant made default in performing his part of the contract, it was held, that, notwithstanding the form of the contract, the plaintiffs were properly joined in a general indebitatus assumpsit count to recover the money advanced.</p> <p>2. Contract—of readiness and willingness to perform. Where a party is, by the terms of a contract, required to pay money upon performance by the other party, and he is ready and willing to give his check for the money, and he has the money in the bank, and that has been the usual mode of making payments of money between the parties, and the party who is to receive the money makes no objection to the check, these facts show a sufficient readiness and willingness to comply with the contract by the one party to entitle him to recover for non-performance by the other.</p> <p>3. Instruction. Even if the court instructs the jury as to the amount of their verdict, in such a way as ignores a plea and claim of set-off, yet, if it appears, from the evidence, that the finding of the jury was not too much, even if they had allowed all the set-off proved, the instruction .will form no ground of error.</p>