Watson v. Woolverton

Citations

• 41 Ill. 241

Syllabus

<p>1. Assumpsit—for money liad arid received—when it lies. The action of assumpsit for money had and received, is an equitable action, in which the plaintiff can recover from the defendant so much money as he can show the defendant, ex equo et bono, ought not to retain.</p> <p>2. Practice m the Supreme Court—who may object to the character of the remedy resorted to. Where a party sued out a writ of error to reverse a judgment in his favor, the defendant objected that the action brought was not the proper remedy, but, as he made no such objection in the court below, and did not prosecute the writ of error, it was deemed unnecessary to decide whether the action was the proper one on the.facts.</p> <p>8. Measure oe damages—in suit to recover back the purchase-money on failure of title to land. Where a purchaser of land, who holds the obligation of his vendor to make him “a good and sufficient warranty” deed for the premises, has been actually evicted therefrom under an outstanding paramount title, and lost the property, the measure of damages in an action to recover back the purchase-money, is the price paid for the property and six per cent interest thereon.</p> <p>4. But if there was only a failure of title as to the land, and the purchaser has purchased in the outstanding title from the true owner, and has never been disturbed in his possession of the premises, the measure of damages would be the value of the title he had to purchase in order to protect himself in the enjoyment and possession of the property .which he had purchased from the defendant, and to prevent an actual eviction, and any costs and expenses he may have been compelled to lay out in so purchasing title and protecting his possession.</p> <p>5. Error will not always reverse — of improper instructions. The giving of an erroneous instruction will not he ground for reversal, if the verdict of the jury was just and proper.</p>