Latham v. Sumner

Citations

• 89 Ill. 233

Syllabus

<p>1. Sale—whether sale or lease. Where a party, upon delivery of a piano, took three promissory notes from the other party for the balance of the price, to which were annexed conditions, to the first and second that the piano, for the use of which the notes were given, should remain the property of the payee, and on default of-payment it should be returned to him, and to the third that upon payment of it and all prior notes given for the use of the piano, the same should become the property of the maker of the notes, it was held, that the transaction must be regarded as a sale of the instrument.* </p> <p>2. Rescission of contract—by taking back property sold—refunding money paid. Where personal property is sold, a part of the price paid, and notes given for the balance, under a contract that upon default in the payment of either note the property shall be returned to the seller, with no provision for the return of the payments made, and the vendor, on failure to pay the first note, takes possession of the property, with the consent of the purchaser, and surrenders his notes, there will be no rescission of the contract. The retaking of possession in such case is but in accordance with the contract, and the vendor will not be liable to refund the payments made to him.</p> <p>3. Recoupment. Where the vendor of a piano takes possession of the same for default of payment, under a contract authorizing him to do so, and with the consent of the purchaser, if he were liable to refund payments made he would have the right to recoup or set-off any damages sustained by him by the failure of the purchaser to perform the contract. In such case he might recoup the value of the use of the instrument, and any depreciation in its value growing out of its use.</p> <p>4. Practice—defense in suits originating in justices’ courts. The defendant in a suit originating before a justice of the peace, has the right, without formal pleadings, to urge any defense he may have on the trial, in t