Trunkey v. Hedstrom

Citations

• 131 Ill. 204
• 23 N.E. 587

Syllabus

<p>1. Witness ■—competency — a party — as to transaction with agent of adverse party—the agent having died. A party seeking .to recover on a contract made by him.' with an agent of the adverse party, after the death of such agent, is not a competent witness to prove such contract, or the conversation or transaction between himself and the agent, even though the adverse party may have it in his power to read a deposition of the agent in evidence, but does not do so.</p> <p>2. In an action on a contract for the purchase and sale of coal, one of the plaintiffs, claiming to have contracted with the defendant’s agent, testified as to the terms of the contract, and so did such agent. After the trial, it was stipulated that on any subsequent trial the testimony of the agent, as taken down by a stenographer, might be read, the same as a deposition. There was a second trial, the agent having in the meantime died. The court refused to allow the plaintiff to testify as-to the alleged contract, or to read his former testimony in evidence: Held, no error in the ruling.</p> <p>3. SaIiE—price—to he implied. The rule that in a contract of bargain and sale of personal property, if nothing is said by the parties as to the-price, the law will imply an understanding that it is to be paid for at-what it is reasonably worth, can not be applied in an action by the purchaser for damages for a failure to deliver, for the reason there can be no damages. Such rule may be applied in a case where the vendor-sues the vendee for refusing to take and pay for the goods.</p> <p>4. Same—vendee refusing to perform—remedy of seller. If the vendeeof goods refuses to take and pay for the same, the vendor may store them for the vendee, giving notice of that fact, and then recover the full contract price; or he may keep the goods, and recover the excess of the contract price above the market price; or he may give notice to the vendee, sell the goods, and recover the loss, if they fail to bring the amount o