Phelps v. Reynolds, 49 Ill. 210 (1868)

Sept. 1868 · Illinois Supreme Court

49 Ill. 210

Albert Phelps, Administrator, &c. v. Daniel Reynolds.

Assessment op damages—iy ilie clerk. Where, in an action of assumpsit, against the acceptor of an order for a definite sum of money, conditioned to be paid upon the sale of certain real estate, the declaration averred that such real estate had been sold, and judgment was taken by default, the damages rested merely in computation, and might be assessed by the clerk of the court.

.. Writ oe Error to the Circuit Court of Kane county; the Hon." Sylvanus Wilcox, Judge, presiding.

The opinion states the case.

Mr. R. L. Divine, for the plaintiff in error.

Mr. R. N. Botsford, for the defendant in error.

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action of assumpsit, brought by Reynolds, the payee, against Walker, the acceptor of the following instrument, this writ of error being prosecuted by Phelps, his administrator:

“Wm. G-. Walker—Sir:

“ Please pay Daniel Reynolds, or bearer, the sum of four hundred dollars, with use, when the real estate of Benjamin Walker is sold, and charge the same to me in my interest in said estate, it being for value received.

“ABEL WALKER.

“ Plato, May 15 th, 1857.”

There was a judgment by default, and the clerk assessed the damages. This assessment by the clerk is the only error assigned. But in this there was no error. The declaration averred the real estate of Benjamin Walker had been sold. This averment was admitted by the default. Upon such sale the instrument became absolutely payable, and the damages rested merely in computation.

The judgment of the court below is affirmed.

Judgment affirmed.