Porter v. Boardman ( 1856 )

Catón, J.

This suit is brought in Cook county, and the summons sent to Tazewell county, the residence of the defendant below, for the breach of a contract for the sale and delivery of wheat in Cook county, which was not the residence of the plaintiffs below. A plea in abatement presents the question of the right of the party to bring the suit in Cook county. This depends upon a proper construction of our Practice Act. The second section of that act provides, “ It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in cases where the debt, contract or cause of action, accrued in the county of the plaintiff, or where the contract may have specifically been made payable.” Here the legislature has provided for two classes of cases, where the defendant may be sued out of the county where he resides or may be found. First, where the debt, contract or cause of action accrued in the county of the plaintiff, when the suit may be brought in the plaintiff’s county. These expressions are broad enough to include all manner of causes of action for which a party may be sued for the recovery of a debt or damages. Second, where the contract is specifically made payable in a particular place, there the suit may be brought, though neither party resides there. This language is much more limited in its signification. It is only where something is specifically made payable at a particular place, that the undertaking is brought within this last clause. A payment must be made, which implies a satisfaction of a past consideration, and widely differs from a contract for the performance of simultaneous or dependent acts, as the delivery of wheat and taking pay therefor. In such a case the delivery of the wheat can, in no just sense, be said to be a payment for the money which the purchaser has agreed to pay therefor; and yet we must so hold, in order to bring this contract within the last provision. I confess this seems to me simply absurd. I cannot think the legislature ever used this language with such a meaning. They understood payment to mean something else than the delivery of wheat, for which the seller was the party to be paid. It has been well suggested in argument, that this suit is not' brought for the recovery of the wheat, which is the only thing the party agreed to deliver in Chicago, but it is for the recovery of damages in money, which the law awards the party for the breach of the contract, for the non-delivery of the wheat, or, if you please, upon the implied undertaking of the party to pay the damages in money should he fail to deliver the wheat. He no where agreed to pay this money, which is sued for as damages, in Cook county. Should we hold that this contract is included in the first clause, then .we must hold that the last embraces all contracts, and is as comprehensive as the first, except as to torts. We are of opinion that such was not the intention of the legislature, and that judgment should have been given for the plea.

The judgment must be reversed and the cause remanded.

Judgment reversed'.