Nickerson v. Babcock

29 Ill. 497

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

Opinion

Walker, J.

The note upon which this suit is brought, contains this condition : “And we further agree, if the above note is not paid without suit, to pay ten dollars in addition to the above for attorney fees.” This presents the question, whether this ten dollars can be recovered in the same action, with the principal of the note. It is only payable upon a contingency, and that can never occur until suit is brought to enforce the payment of the note. This sum was not due until suit was instituted, and no rule of practice is more uniformly recognized, than that a suit cannot be maintained before a demand is due. The plaintiff is, therefore, limited in his recovery, to the debt or damages due at the time of suing the writ. The ten dollars in this case was not due when the writ issued, and consequently was improperly included in the assessment of damages.

The judgment of the court below is therefore reversed, and the cause remanded.

Judgment reversed.