Eggleston v. Buck , 24 Ill. 262 ( 1860 )

Breese, J.

The first point made by the appellant, Eggleston, is the only one we deem necessary to be noticed in order to a decision of this case. He contends that evidence of a sale made by Corning & Co. to him, in consideration of which he promised to pay a part of the purchase money to the appellee Buck, the plaintiff below, cannot be given in evidence under the common counts for goods bargained and sold generally, by the appellee to the appellant, but he should have declared specially.

The evidence does not make out precisely the point as stated. The proof by Neef is, that when he, as the agent of Corning, sold the goods to appellant, he disclosed to him the fact before the sale, that the appellee had an interest in the goods, and that appellant agreed with the witness. to pay to appellee his share, which was about seven hundred dollars.

This, although a special bargain, it being fully performed on the part of the appellee, and nothing remaining to be done by the appellant, but to pay the money, affords a basis, and is good ground whereon to maintain an action for such money, and it can be recovered on the common counts. The rule is, where-ever the terms of a special agreement or bargain have been performed, so as to leave a mere simple debt or duty between the parties, the plaintiff may proceed on the common count.

1 Saunders PL and Bv. 180. The money payment may be enforced by an action of indebitatus assumpsit. Stone v. Rogers, 2 Meeson & Welsby, 448 ; Irving v. Veitch, 3 ib. 111; Alcorne v. Westbrook, 1 Wilson, 117. The authorities are numerous on the point. See Bank of Columbia v. Patterson's Adm'rs, 7 Cranch, 299 ; Canal Co. v. Knapp, 9 Peters, 541; 2 Greenleaf Ev. 104; Throop v. Sherwood, 4 Gilm. 98.

The case of Eddy v. Roberts, 17 Ill. R. 509, does not militate against this doctrine. See also Brown v. Strait, 19 ib. 88; Bristow v. Lane, 21 ib. 197.

As to the second error assigned, this court cannot know but that a bill of particulars was filed in obedience to the rule. It is no part of the record of itself, and the bill of exceptions has not embraced it. This disposes of the third error assigned also.

There is no error in the record which we can notice, sufficient to reverse the judgment, and we therefore affirm it.

Judgment affirmed.