Citation Numbers： 110 Ill. App. 29, 1903 Ill. App. LEXIS 577
Judges： Baker
Filed Date： 10/9/1903
Status： Precedential
Modified Date： 10/18/2024
delivered the opinion of the court.
Appellee, in the court below, had a verdict and a judgment thereon against appellant for $125 in an action brought upon the following instrument in writing, viz.:
“Chicago, Ill., June 14, 1900.
W. H. Buchanan & Company, 226 E. Iiinzie street, city.
Gentlemen :—For value received we hereby agree to return to you, on or before October 1, 1900, the goods consigned by you for sale to Henry Delany, of the value of $125, or to pay to you the sum of $125 on or before October 1, 1900, provided you turn over to us, or either of us, by proper assignment, upon payment of the said sum of $Í25 on or before October 1, 1900, a certain warehouse receipt, dated April 27, 1900, issued by Werner Bros., for certain household goods stored with them by Henry Delany.
Fours truly,
Henry Delany,
Richard A. Paddock.”
By the plain terms of this instrument appellant promised appellee to pay him $125 on condition that appellee then turn over to him by “ proper assignment ” the warehouse receipt in said instrument mentioned. The turning over of the warehouse receipt by proper assignment and the payment of the $125 were by the terms of the instrument to be concurrent acts. Appellant had no right to demand that the warehouse receipt be turned over to him without paying the $125, nor had appellee the right to demand of appellant the $125 without turning over to him by proper assignment the warehouse receipt. To establish a right of recovery against appellant in the court below, appellee was bound to show an offer, or at least a present ability, to turn over to appellant by proper assignment the warehouse receipt upon payment of the $125. The record fails to show such evidence. On the contrary it appears that while the warehouse receipt was delivered to appellee bv Delany it was never indorsed or assigned by Delany.
It is not, nor has it ever, therefore, been in the power of appellee to turn over to appellant the warehouse receipt by proper assignment.
In our opinion the instruction to the jury to find for the defendant should have been given.
The judgment will be reversed and the cause remanded.