Wheelock v. Berkeley

Citations

• 138 Ill. 153

Syllabus

<p>1. Warranty—measure of damages for breach. The measure of damages for a breach of -warranty on the sale of property is the difference between the value of the property as warranted and its actual ;value at the date of the breach. It is immaterial how much the purchaser may have realized from the property.</p> <p>2. Same—retaining possession after known breach—whether waiver. The mere fact that a purchaser retains possession of the property bought niter a known breach of warranty, while it may bar him from a rescission of the contract, will not constitute an abandonment of his remedy by cross-action, or by a counter-claim in the vendor’s action for the price.</p> <p>3. Same—breach interposed in defense to action for price. In an notion upon a note given for the price of a horse, or one in renewal of such note, it is competent for the defendant to interpose in defense a breach of the warranty of the soundness and speed of the horse.</p> <p>4. Renewal note—consideration. Where a promissory note is given in renewal only of a prior one, the real consideration for which it is given is that for which the prior note was given, and it is competent, in a suit upon the subsequent note, to show that the consideration has failed.</p> <p>5. Same—renewal or payment. Whether a subsequent note is given in payment of or only in renewal of a prior one, is not a question of law, but one of fact, to be determined by the jury.</p>