Davis v. Kenaga

51 Ill. 170

• Court: Illinois Supreme Court
• Decided: September 15, 1869
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action brought to recover the value of a quantity of corn loaned by the plaintiff to the defendants. That the plaintiff was entitled to recover is very clear, but there is a conflict of evidence as to the amount. We are, however, obliged, reluctantly, to reverse this judgment, because of an error in the instructions. The court, in the second instruction, told the jury they might allow interest on the amount they found due from the time the plaintiff had demanded a return of his corn, and the defendant had in fact returned the quantity, but of an inferior grade as to quality. This instruction was error. The only ground upon which interest is recoverable in this case would be that there had been “ an unreasonable and vexatious delay of payment,” within the meaning of the second section of the interest statute, but whether there had been such unreasonable and vexatious delay was a question of fact to be submitted to the jury, as held by this court in Kennedy v. Gibbs, 15 Ill. 406. It was held in Sammis v. Clark, 13 Ill. 544, Hitt v. Allen, ib. 592, Clement v. McConnell, 14 ib. 151, McCormick v. Elston, 16 ib. 205, and Aldrich v. Dunham, ib. 404, that something more than mere delay of payment was necessary to bring a case within the statute.

The judgment is reversed and the cause remanded.

Judgment reversed.