Phelps v. McGee , 18 Ill. 155 ( 1856 )

Caton, J.

The replication to the plea in abatement shows, that the contract, on which the action was brought, was made in the county of Cass, which was the residence of the plaintiff, and the first question is, whether this authorized the plaintiff to bring his action in that county, and send the summons to another county. The statute is this : “ It shall not he lawful for any plaintiff to sue a defendant out of the' county where the latter resides, or may he 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 been specifically made payable.” If this contract accrued in Cass county, which was the residence of the plaintiff, then the action was well brought there. We have no doubt that this word acc/rued was used by the legislature, so far as it applies to the word cont/ract, as synonymous with made, or executed, although such is not ordinarily its strict signification. It is certainly more properly applied to the words “debt, and cause of action.” If it means anything, as applied to the word contract, it must refer to the place where the contract was finally executed, and became obligatory upon the parties; for in no other sense can a contract be said to accrue. One meaning of the word is, to grow out of, or, to result from; and an executed contract may, with propriety, he said to have grown out of, or resulted from, the negotiations of the parties. Certain it is, to our minds, that the legislature here meant to designate the place where the contract is made.. This contract having been made in the plaintiff’s county, he had a right to bring his action there. In Porter v. Boardman, 17 Ill. R. 594, the plaintiff did not reside in Cook county, although the contract was there made ; and we held that he could not bring his action there. The demurrer to the replication was properly overruled.

We think the basis laid down for and adopted by the jury, in the estimation of tire damages, was wrong. By the terms of the contract, Phelps was bound to deliver the corn at his warehouse, at Point Isabel, on or before the 1st of August, 1854, at the option of the purchaser; and if it was not taken away immediately, McGee had to pay storage, as stipulated. Phelps could be guilty of no breach óf the contract before the first of August, except upon a demand made by McGee. Rone such was made, and the corn, or, at least, a part of it, was not delivered at that time. On that day, therefore, Phelps was guilty of the breach, and not afterward. For that breach alone could he be sued on the contract. On that day the damages accrued to the plaintiff below, and only for such damages as accrued on that day could he recover in an action on the contract for such breach; and the true measure of damages was the difference between the value of the corn on that day and at that place, and the contract price. A different rule, however, was adopted in the court below, and that was, the difference between the contract price and the value of the corn on the 31st of May, the next year; when the demand and refusal to deliver were made. The refusal to .deliver the corn on that demand, was no breach of the contract; although, had the corn been then delivered, Phelps might have insisted upon such demand as a waiver of the previous breach, and the acceptance of the corn as a satisfaction of the contract.

The judgment reversed and the cause remanded.

Judgment reversed.