Peck v. Brewer

Citations

• 48 Ill. 54

Syllabus

<p>1. Contracts—construction of a particular contract Where B, under an agreement with P, received the use and possession of a certain number of sheep, for a specific time, at an agreed price, and stipulates therein, among other things, that at the expiration of the time he would return to P, “ in good marketable condition,” the same number of the same breed of sheep, which he had received, together with the increase thereof, or the increase of the same animals left with him, and the sheep so delivered to B, under the contract, were, after their receipt by him, found to be diseased: Held, the true construction of this agreement, as to kind of sheep to be re-delivered, is, that the sheep returned by B, shall be as “ good and marketable” as can reasonably be expected, the animals being diseased.</p> <p>2. Same — when may be affirmed or rescinded, after a discovery of fraud, and damages arising from the fraud recovered by separate action or recouped. And in such case, when the contract had been partially executed, before B discovered the fraud which had been practiced upon him, by delivering to him diseased sheep, he had the option either to affirm or rescind the contract, reserving his claim for damages arising from such fraud, either by a separate action, or claiming them by way of recoupment, if sued upon the contract.</p> <p>3. Recoupment—when allowed. The established doctrine is, that recoupment will be allowed whenever an action for damages, arising out of the subject matter of the suit, can be sustained, and thus avoid circuity of action. Courts will favor recoupment, rather than drive a party to a separate action.</p> <p>4. Former decisions. Stowr. Yarwood, 14 Ill. 424; Brigham v. Hawley, 17 ib. 38 ; Schuchmann v. Knoebel, 27 ib. 178 ; Sanger v. Fincher, 28 ib. 347 ; Bates v. Gourtwrighiet al., 36 ib. 518 ; Bunn v. Gage, 37 ib. 19, and Wright v. Battin el al., 38 ib. 293, cited in support of this doctrine.</p> <p>6. Jury—affidavit of juror can not be heard to i