Hutt v. Bruckman

Citations

• 55 Ill. 441

Syllabus

<p>1. Jury—should he allowed to settle issues of fact. If there is any evidence before a jury, tending to prove an issue submitted to them, it is error for the court to exclude it from their consideration. In such case the question is not whether the evidence is sufficient to prove the issue, but whether there is so much evidence tending to prove it, that it should not be excluded.</p> <p>2. Breach of warranty—application of the damages arising therefrom, to one of a series of notes. Where several notes were given upon the purchase of personal property, in respect to which there was a warranty, and all the notes have been paid except one, if there be a breach of the warranty, the damages arising therefrom, being equal in amount to the note remaining unpaid, may be applied to the full extinguishment thereof, and will not be regarded as applicable only to the whole series of notes, to be deducted from each in the proportion its amount should bear to the entire consideration of the purchase.</p> <p>3. Replevin—when it will lie—what matters may he adjusted therein. A. mortgagee of chattels took the property into possession for non-payment of the last of a series of notes to secure which the mortgage was given, and thereupon the mortgagor brought an action of replevin against the mortgagee to recover the possession of the property. The defendant set up the mortgage and the notes secured thereby, alleging the non-payment of the last of the series, and consequent breach of the condition of the mortgage. To this the plaintiff replied that the notes were given on the purchase from the mortgagee of the property embraced in thtymortgage, in respect to which there was a warranty, and that the damages arising from a breach of such warranty equaled in amount the note remaining unpaid, and sought to have such damages applied in extinguishment of that note: Held, the replication was good, and the matters involved therein could be properly adjusted in the action of replevin.</p>