Linton v. Porter

31 Ill. 107

• Court: Illinois Supreme Court
• Decided: April 15, 1863
• Status: Published

Opinion

Mr. Justice Bbeese

delivered the opinion of the Court.

This was an action brought before a justice of the peace on a promissory note made by the appellant to the appellee, the plaintiff below, and judgment for her. On appeal to the Superior Court of Chicago, the judgment was affirmed.

The defense was, want of consideration.

The facts are, that the plaintiff’s husband died possessed of an iron pile hammer, which the plaintiff sold and delivered to the defendant, receiving the note in suit in payment therefor.

The hammer is in defendant’s possession, and the sale and delivery to him, was a good consideration for the note. The plaintiff, by her sale of the hammer, impliedly warranted the title to it, and if.it shall be taken out of the possession of the defendant, he can recover its value on this warranty.

It would be great injustice to allow this defense, and at the same time allow the defendant to keep the hammer. Having undisturbed and unquestioned possession of the hammer, he must pay the note. He cannot be allowed to repudiate his note, and keep the property also.

The judgment is affirmed. Judgment affirmed.