Fidelity Savings Bank & Safe Depository ex rel. Turpin v. Shufeldt

2 Ill. Cir. Ct. 36

• Court: Illinois Circuit Court
• Decided: July 1, 1878
• Docket: General No. 69, 821
• Status: Published

Opinion

Gaby, J.:—

Let the demurrer be sustained, as decided in Chisholm v. McGinnis.

Mr. Westoveb : The defendants ask leave to amend.

Gaby, J.: You can do so, on filing an affidavit showing that you have a good defense.

To this defendants file an affidavit setting up that the stock deposited was, at the time deposited, valuable, and that while valuable defendant notified plaintiff to sell and apply proceeds to payment of note sued upon. This plaintiff neglected to do, and defendant was damaged thereby, and asks to have his damages set off against this action.

Mr. Bradford : This is no defense in law, and I refer your honor to the following cases: Prettyman v. Barnard, 37 Ill. 109; Rozet v. McClellan, 48 Ill. 347; Story on Bailments, secs. 308-321; Henry v. Eddy, 34 Ill. 508; Cashman v. Hays, 46 Ill. 145; Leake v. Brown, 43 Ill. 372; Belden v. Perkins, 78 Ill. 449; Chicago Artesian Well Company v. Corey, 60 Ill. 73; Coggs v. Bernard, Smith’s Lead. Cas. vol. 1, pt. 1, 384.

Mr. Westoveb : I refer your honor to 28 Minn.

Gaby, J.: Plaintiff was not bound to sell collaterals which defendant had the right at any time to redeem. He did not do so, and could not force plaintiff to the expense and trouble of sale or litigation. Let the plea be stricken out for want of sufficient affidavit of defense. Plea stricken and judgment $4,751.28. Appeal prayed and allowed.