Jones v. Buffum

Citations

• 50 Ill. 277

Syllabus

<p>1. Exceptions—whether necessary. Under the 22d section of the Practice Act (Scates’ Comp. 263), parties may assign error on the final judgment, upon both the law and the evidence, in ease of trial by the court without a jury; and no formal exception to overruling a motion for a new trial, is necessary, nor is any motion for a new trial necessary. The court, under that section, are authorized to consider both the law and the evidence, and determine whether error has intervened in rendering the judgment.</p> <p>2. Former decisions.—The case of Metcalf v. Fouts, 27 Ill. 110, approved and applied. Mahoney v. Davis, 44 Ill. 288, cited to the same point.</p> <p>3. Consideration—partial failure of \\ in a note. It is competent to show what was the real consideration of a note sued on, in order to impeach it. Under our statute, a party may plead the total or partial failure of consideration, alleging wherein and to what extent.</p> <p>4. Same—in sale of real estate. Under a plea of partial failure of consideration, it is competent for a defendant to show that a note was given in part for real estate and in part for improvements which were to be made thereon by the vendor, but which were not made; and their value is the extent of the failure of consideration. Such evidence would neither contradict nor vary the stipulations in the note or deed.</p>