Dehler v. Held

Citations

• 50 Ill. 491

Syllabus

<p>1. Contracts—excuse for non-performance. As a general rule, where a party binds himself to perform an act, he is held to its performance, except where it is rendered impossible by the act of God or the public enemy. The mere fact that it may be inconvenient, or attended with loss, is no excuse.</p> <p>2. Forthcoming bond—excuse for non-delivery of the property. So, in an action on a forthcoming bond which had been given for the delivery of property seized upon execution, the security in the bond pleaded, that at the time of the levy a portion of the property was subject to a prior valid mortgage, and after the execution of the forthcoming bond the mortgagee took the property into liis possession, as he had a right to do under the provisions of his mortgage, and sold it in part satisfaction of his debt, the property being insufficient to satisfy the whole: Held, the plea did not present a defense to the action. The party interposing the plea could have paid the mortgage debt, and thus discharging the property from the lien, would have been able to deliver it, according to the condition of his bond.</p> <p>8. Measure of damages—in an action on a forthcoming bond. In an action of covenant or debt, on a bond with a condition, the true measure of damages is the loss sustained by the covenantee or obligee.</p> <p>4. So, in an action on a forthcoming bond, for a non-delivery of the property, it was pleaded by the surety that there was a prior mortgage lien upon the property, and by virtue of the mortgage the mortgagee had taken it and subjected it to the satisfaction of a portion of his debt, the property being worth less than the lien of the mortgage: Held, only nominal damages could be recovered.</p> <p>6. If, however, it should turn out that the property was worth more than the mortgage lien, then the excess, whatever it might be, would be the measure of damages, as that would be the extent of the injury sustained by the plaintiff in the execution.</p> <p>6. Plea in