Tully v. Excelsior Iron Works

Citations

• 115 Ill. 544
• 5 N.E. 83

Syllabus

<p>1. Becoupment—for breach of warranty■—in suit for the price of the thing sold. In a suit by the seller of a machine for the contract price, the purchaser may recoup, under the general issue, any damages he may have sustained by reason of a breach of the warranty as to the quality and capability of the machine.</p> <p>2. Action—against whom it will lie—for work and materials—set-off. If A agrees with B to manufacture a machine for him, and procures 0 to furnish the materials and do the work, the latter can not maintain an action against B for the value of the work and materials, but must sue A. But if he sues B, B can not set off or recoup any damages he may sustain in consequence of a breach of guaranty made by A.</p> <p>3. Parties—non-joinder of plaintiffs. If the inventor of a machine undertakes, jointly with a manufacturer, to construct a machine for another, the manufacturer can not maintain an action in his own name alone, to recover the price of the purchaser. The non-joinder of the inventor as a co-plaintiff will be fatal.</p> <p>4. Instruction—must be based on evidence. An instruction based upon the assumed existence of a fact of which there is no evidence, is objectionable, and is properly refused.</p>