Staat v. Evans

Citations

• 35 Ill. 455

Syllabus

<p>1. Assumpsit—when it will lie, where property has been wrongfully taken. If one person converts the property of another into money, or money’s worth, the owner may waive the trespass, and recover for money had and received to his use.</p> <p>2. Variance between allegations and proof under a special count—whether evidence admissible under common counts. Where a declaration in assumpsit contains a special count, and also the common counts, if there be a variance between the proof and the allegations in the special count, and the subject matter as proven is properly admissible under any of the common counts, a recovery may be had under those counts. The object, usually, in adding the money counts, is to avoid the effect of a variance under the special counts.</p> <p>3. Tender—when necessary and when not. Where the owner of a lot of cattle placed them in the hands of another to be fed and fattened, at a stipulated price per pound for the increase in weight, and the owner brings assumpsit to recover the value of the cattle, alleging that the party who had taken them to feed, had converted them into money, it is not essential to the plaintiff’s right of recovery that he should have tendered to the defendant the price agreed to be paid for feeding them.</p> <p>4. Should the owner, in such case, bring replevin for the recovery of the cattle themselves, then a tender would be essential to a recovery, unless the opposite party had rendered it impracticable.</p> <p>5. In this case the defendant was in possession of the cattle at the time the owner demanded them, so that the latter could not have them weighed, and thus was unable to make a tender of the price for feeding them, as it could be ascertained in no other way. .«</p> <p>6. Interest—when recoverable. Where cattle are placed in the hands of a party to be fed and fattened, and redelivered at a certain time, and upon failure to redeliver them, the owner, after the expiration of the time fixed, makes demand of them, whi