Walker v. Kesner

Mr. Presiding Justice Sears delivered the opinion of the court. Without discussing appellant’s possible right of recovery against appellees in another form of action upon the facts disclosed by the declaration, it is enough to say that it appears from the declaration, and from each count thereof, that appellees did not enter into any covenant whatever with appellant, and hence that the declaration in covenant was bad. Here the defendant has not engaged by deed to perform the covenants, and consequently covenant will not lie. Butnett v. Lynch, 5 Barn. & C. 589; Moore v. House, 64 Ill. 162; R. R. I. & St. L. R. R. v. Beckemeier, 72 Ill. 267; Hancock v. Yunker, 83 Ill. 208; Neufeld v. Beidler, 37 Ill. App. 34; McCormick v. Seeberger, 73 Ill. App. 87, Seeberger v. McCormick, 178 Ill. 404; Murphy v. Kohlsaat, 68 Ill. App. 579. The learned trial judge properly sustained the demurrers. The tendency of the courts may be toward a greater liberality in matters of pleading in order that substantial justice may be speedily done, but our courts have not as yet so far departed from common law rules of pleading as to permit a recovery in covenant under a declaration which sets up a breach of implied warranty or a tort. Our statute of amendments is broad and liberal and is liberally interpreted. There was nothing to prevent a curing of the error in pleading after the demurrers had been sustained. The judgment is affirmed.