James v. Morey

Citations

• 44 Ill. 352

Syllabus

<p>1. Statute ob bbauds—where a parol promise has teem performed. Where one party made a verbal promise to give another a certain sum of money if the latter would marry within a year, and upon his marrying the money was voluntarily paid, it cannot be recovered back, whether this promise was originally within the statute of frauds or not.</p> <p>3. Same—how to raise the question as to the application of the statute. In this case, the party who made the promise to give the sum of money to the other if he would marry, brought suit against him to recover a debt, and on the trial the defendant set up a credit which he had entered in his favor on the plaintiff’s books, as he alleged, with the plaintiff’s consent, of a residue of the sum which the plaintiff had promised to give him, he having married within the time stipulated. The plaintiff, to raise the question whether his promise to the defendant was not within the statute of frauds, moved to exclude all the evidence on that subject. This was held not to be the proper mode of presenting that question; the proper course was to ask the court to instruct the jury that they were to disregard all evidence touching the promise of the plaintiff, unless they believed from the testimony that he had authorized the defendant to enter the credit, or had assented to such entry after it was made, and they were not to allow the amount thus credited merely because it had been promised.</p> <p>3. Pbactice—dbmating error hy concessions from the opposite pa/rty. Where the plaintiff in a suit, who has a verdict returned in his favor, asks a new trial on the ground that the verdict is too small, it is not error for the court to state, that the new trial will be allowed unless the defendant will consent that the verdict shall be raised to the amount shown by the instrument sued on to be due, and upon such consent being given, to enter the judgment accordingly.</p> <p>4 Verdict in debt — the proper form thereof. In an action of debt to recov