Prince v. Dulin ( 1889 )

Conger, J.

This case was before us at the May term, 1888, and in the opinion filed November 23, 1888, will be found a statement of the facts.

Upon the filing of the order of affirmance in the court below, the following stipulation was filed:

State of Illinois, McLean County. ss. County Court, December term, 1888.

Ezra M. Prince vs. Sarah Dulin et al. In Replevin.

This cause having been affirmed by the Appellate Court, order of affirmance is hereby waived and this cause is reinstated on the docket of this court, and it is hereby agreed that the judge of this court shall summarily, without the intervention of a jury, hear such evidence as either party may desire to introduce, and determine the amount of damages, if any, that the plaintiff is entitled to recover of the defendants, and said court shall enter all orders and judgments, and all orders as may be necessary or proper to adjust the rights of the parties in the premises.

Ezra M. Prince, Tipton & Beaver,

Attorneys for Dulins.

Under this stipulation a trial was had, evidence heard, and the .court entered a judgment in favor of appellant for $20.

A motion is made to dismiss the appeal because, as it is alleged, the proceeding in this case was .not a suit upon which an appeal would lie. We think the appeal would lie, and the motion will therefore be overruled.

We think the court erred in refusing appellant leave to show as damages all such costs and expenses as were occasioned by appellees failing to comply with their contract. In the chancery proceedings between these parties it was found by the court that the chattel mortgage in question and the note it secured for $500 were to secure the performance of the original agreement entered into between the parties • hereto, and that appellees had not complied with their portion of it; hence appellant is entitled to hold the property covered by the chattel mortgage or the money substituted for the property, or so much thereof as will cover the costs and expenses to appellant occasioned by the failure of appellees to comply with their contract.

The judgment of the County Court will be reversed and' the cause remanded. Reversed and remanded.