Funk v. Hough

Breese, J. Two questions are made on this record. First, as to the sufficiency of the sheriff’s return to the summons, and, second, the sufficiency of the special counts in the declaration. The objection taken to the sheriff’s return in this case, has been so frequently made of late, that we took occasion, at the last term of this court in the Second Division, to review all the cases on the point, with reference to the statutory requirement, and arrived at the conclusion, that a return, like this now before us, was a good and sufficient return, and a literal and strict compliance with the statute. Carriker v. Anderson, 27 Ill. 358. The objections taken to the special counts, are not tenable. In both of them, a consideration for the defendant’s promise is formally set out, which was, the promise and agreement of the plaintiffs to receive and pay for the cattle, which the defendant agreed to deliver; that they had paid a part of the price, and were ready and willing to take the cattle and pay for them, according to the contract, of which the defendant had notice, but refused to deliver the cattle or return the money paid on them. Promise for promise is a good consideration everywhere. The performance of the defendant did not depend on the prior performance of the plaintiffs. They were passive, only to act when the defendant should deliver the cattle. The delivery of the cattle, on or before a certain day, was a condition precedent to the performance of any act by the plaintiffs. When two acts are to be done at the same time, as where one agrees to sell and deliver, and the other agrees to receive and pay, in an action for the non-delivery, it is only necessary for the plaintiff to aver and prove a readiness to pay on his part, whether the other party was at the place ready to deliver or not. Porter v. Rose, 12 Johns. 208. That, is this case. Here the contract was to deliver the cattle, by a certain day, at Chicago, the defendant having the option to be paid as for gross weight or for net weight. The plaintiffs could not pay or tender the money, until the weight, either gross or net, was ascertained, and that could be known only on delivery. All this was precedent to the payment or tender of the money. Hough v. Rawson, 17 Ill. 588. The cases cited by appellant’s counsel, have no application to the case made by these special counts. They are cases where the first act to be done was to be by the plaintiff. Here, the first act to be done was to be performed by the defendant, and his option determined as to the weight. The plaintiffs could not act until those acts were done. The judgment of the court below is affirmed. Judgment affirmed.