Town v. Wood

Citations

• 37 Ill. 512

Syllabus

<p>1. Pleading—when the plaintiff must declare specially. When a party executes a mortgage to secure a sum of money which the mortgagee promises to pay to a third person upon a debt of the mortgagor, if the mortgagee refuses to pay the debt, the mortgagor, the mortgage being unpaid, can only recover for his failure so to do, by a suit brought upon the special contract.</p> <p>2. Same—when recovery can be had under the common counts, for money had and received. But the mortgage being paid, and the mortgagor having also been obliged to pay, himself, the debt which the mortgagee agreed to pay for him, he has a right to treat the money which went into the hands of the mortgagee in consideration of his undertaking to pay the debt, as received by the mortgagee to his use, and to recover it back in an action for money had and received, the consideration upon which it was received having wholly failed. In such case it is not necessary to declare specially.</p> <p>3. Assumpsit—for money had and received—whether money must actually be paid. In this case the mortgage was not actually paid in money, but in a purchase of the mortgaged premises by the mortgagee from a subsequent grantee of the mortgagor, it was put in at its face as part payment for the land. Yet this was the same thing as though the mortgage had been paid in money, and the action for money had and received would lie at the suit of the mortgagor upon the failure of the consideration for which the mortgage was given.</p> <p>4. Measure os damages—in an action for money had and received. Where, in addition to the principal sum which the mortgagee was to pay for the mortgagor, there was usurious interest computed thereon for a given time, and which, with the principal sum, formed the amount of the mortgage which was paid, the measure of damages in an action for money had and received against the mortgagee, would be the whole amount paid upon the mortgage, including the usurious interest.</p> <p>5. The mortgagor does