McCord v. Crooker

Citations

• 83 Ill. 556

Syllabus

<p>1. Practice—refusing leave to plead after demurrerr. Where the plaintiff files with his declaration, under section 37 of the Practice Act, the requisite affidavit, and the defendant demurs, and his demurrer is overruled, the question whether the court abuses its discretion in refusing leave to the defendant to plead, depends on whether his affidavit accompanying his plea shows a substantial defense to the merits.</p> <p>2. If the affidavit accompanying the plea proposed to be filed after the overruling of a demurrer to the declaration, does not show facts necessarily constituting a defense, the court is warranted in refusing leave to file the plea.</p> <p>3. Same—of defendant’s affidavit of merits. Where a defendant undertakes to set up, by affidavit, the facts relied on to sustain his plea, he will be held to the same strictness in matters of substance as in pleading.</p> <p>4. Set-ore—expenses incurred to remove an appa/rent incumbrance on land bought. Where real estate is bought under a warranty deed, and there is an apparent incumbrance found not satisfied of record, and the grantor proposes to allow the expenses of removing the same, a plea of set-off as to such expenses, to a suit upon notes given for the purchase money, which fails to show that the defendant accepted the offer and expended his time and money on the faith of it, and shows no consideration for the promise, and does not distinctly aver that the amount of the proposed set-off is then due and unpaid, is substantially defective.</p> <p>5. Contract—notes not void because given for too much. The fact that notes are given for a larger sum than was agreed by the parties to be due for land purchased, does not render them void, but goes to the consideration, partially, and there may be a recovery pro tanto.</p> <p>6. Common counts—when recovery may be had under. If a note given for the purchase money of land is held void for any cause, a recovery may be had, under the common counts, of the sum actuall