Galena & Southern Wisconsin Railroad v. Barrett

Citations

• 95 Ill. 467
• 1880 Ill. LEXIS 202

Syllabus

<p>1. Contract—construction—when several papers construed together. Where a contract is entered into with a railroad company for a certain number of its bonds secured by first mortgage, in construing the same it should be read as if the bonds and mortgage were set out therein at. length.</p> <p>2. Recoupment—•matters growing out of contract sued on. A party subscribed a written agreement binding himself, on a certain condition, to take five of the bonds of a railroad company of $1000 each, for which he was to pay $650 for each bond on demand of the secretary, he also to receive five shares of stock for each bond so taken, which bonds were secured by a first mortgage on the railroad property and run for twenty years, and bearing seven per cent interest, payable semi-annually in gold coin, which mortgage provided that if any of the interest on the bonds was not paid within ninety days after due, the entire principal and interest coupons should become immediately due. He received and paid for two of the bonds, upon which the company made default in the payment of interest for more than ninety days before it brought suit to recover damages of him for refusing to receive and pay for the other three bonds: Held, that the payment of interest on the bonds was a vital part of the consideration, and that the failure to pay the interest for ninety days made the bonds become due and payable, and that the party, when sued for not completing his contract, might recoup the amount due on his two bonds against the damages growing out of his refusal to accept and pay for the other three bonds.</p> <p>3. Pleading—replication. A replication to a plea, which neither traverses nor confesses and avoids it, is obnoxious to a general demurrer.</p> <p>4. A replication to a plea of set>off of the amount due on certain railroad bonds sold and delivered under the contract sued on, which avers that since the commencement of the action suit was brought to foreclose the mortgage securing these and