Elder v. Hood

Citations

• 38 Ill. 533

Syllabus

<p>1. Pleading—when necessary to declare specially—recovery under the common counts. A recovery can not be had under the common counts in assumpsit upon, a contract, the consideration of which remains executory.</p> <p>2. But when an agreement has been performed in all its parts, except the payment of money by one of the parties, the other may sue and recover under the appropriate common counts.</p> <p>3. Evidence—when sufficient. In an action of assumpsit, under a count for land sold and conveyed, the production of the deed of conveyance executed for the land by the plaintiff, and proof that no money was paid on the delivery of the deed, will authorize a recovery.</p> <p>■ 4. Parol evidence—acknowledgment of the receipt of the consideration'in a deed. The acknowledgement in a deed of conveyance of land, of the receipt of the purchase money, is but a receipt for money, and is subject to be contradicted, explained or varied by extrinsic evidence.</p> <p>5. Partners—when one partner may sue another at law. The fact that one partner sells his individual property to his co-partner, does not constitute it partnership property, or the proceeds of the sale joint funds; nor is the vendor precluded from suing his vendee at law, and recovering the purchase money.</p> <p>6. When money becomes due. On a sale of property, the purchase money becomes due upon the delivery of the property to the purchaser, when no time is specified for the payment. And this rule applies as well to the sale of real estate, as to that of personal property.</p> <p>7. The application of this rule is not at all qualified by the fact that the vendee had a right, under the contract of purchase, to apply certain moneys which he expected to receive from another source for the vendor, as a payment upon the purchase money. The vendor would still have the right to insist upon payment of the purchase money when it became due under the rule above laid down, although the vendee had not yet received the money from