Krause v. Scott

86 Ill. App. 238, 1899 Ill. App. LEXIS 217

Opinion

Mr. Presiding Justice Sears

delivered the opinion of the court.

Upon the facts alleged the amended bill of complaint can not be maintained as a bill of peace or bill to prevent a multiplicity of suits. C. P. S. Exchange v. McClaughrey, 148 Ill. 372; Commissioners v. Green, 156 Ill. 504; Jones v. The Chester Co., 17 Ill. App. 111; Cleland v. Campbell, 78 Ill. App. 624; 1 High on Inj., Secs. 61-62.

Hor can it be maintained upon the ground of equitable set-off. The only claim of set-off presented by the allegations of the bill is such as might result from a breach of warranty of the quality of the articles sold. In a suit for the purchase price of the articles this claim, can be set off. Babcock v. Frice, 18 Ill. 420.

It is not alleged that appellee is insolvent. . There was, therefore, an adequate remedy at law, and there is no ground for the intervention of relief in equity. The non-residence of appellee is unimportant, for he had, by beginning the suit in the Circuit Court of Cook County, brought himself within the reach of appellants in this behalf.

In that suit brought by appellee against appellants to recover on the promissory notes given for purchase price, appellants may plead their claim of set-off, arising by reason of the breach of the warranty of the machines, and thereby obtain full relief in law.

The learned trial judge properly sustained the demurrer. The decree is affirmed.