{
  "id": 2625617,
  "name": "Julius Bender, Defendant in Error, v. Paul Lundberg, Plaintiff in Error",
  "name_abbreviation": "Bender v. Lundberg",
  "decision_date": "1910-01-18",
  "docket_number": "Gen. No. 14,780",
  "first_page": "326",
  "last_page": "329",
  "citations": [
    {
      "type": "official",
      "cite": "152 Ill. App. 326"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "29 Ill. App. 23",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        4971514
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/29/0023-01"
      ]
    },
    {
      "cite": "211 Ill. 229",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        3307252
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/211/0229-01"
      ]
    },
    {
      "cite": "130 Ill. 582",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        12131335
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/130/0582-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 373,
    "char_count": 5643,
    "ocr_confidence": 0.512,
    "pagerank": {
      "raw": 6.380125665320789e-08,
      "percentile": 0.3927680725787488
    },
    "sha256": "dff40d86ebfab99b9a6775a7b9e7a94decc323cfdc7959c24d2708ebf1686789",
    "simhash": "1:601c7e349086d99f",
    "word_count": 936
  },
  "last_updated": "2023-07-14T20:55:41.765695+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Julius Bender, Defendant in Error, v. Paul Lundberg, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Mack\ndelivered the opinion of the court.\nIn the Municipal Court of Chicago judgment was rendered on findings by the court in favor of plaintiff for the sum of $217.50.\nDefendant came to plaintiff\u2019s store to buy a pair of second hand scales and was induced also to purchase a certain cash register, on the plaintiff\u2019s refusal to sell the former without the latter. The key to the purchased register was missing, but a register of the same kind was shown to the defendant. Plaintiff gave defendant a document, retaining a duplicate signed by defendant, reading as follows:\n\u201cJulius Bender,\nMANUFACTURER OF STORE AND OFFICE FIXTURES.\nEntire Stores and Stocks of Merchandise of Every Description Bought for Cash.\nOffice and Salesrooms 230-232-234-236-238 W. Madison Street, Corner Peoria.\nChicago, Nov. 5th, 1907.\nSold to Paul Lundberg,\n2629 113th Str., Cor. State, Roseland.\nTerms Net Cash.\nNo delivery on premises in\nC. O. D. sale without payment.\n201812\u20141 Computing Scale\n1 No: 83 National Register, 111057........................$235.00\nAllow for 1 Computing Scale.................................. 12.50\nBalance ..............................................................$222.50\nDeposit .............................................................. 5.00\nBalance ______________________________________________________________$217.50\n\u201cWe guarantee register to be in first-class condition, and to remain in good working order for two years, and furnish all keys and two rolls of paper of each.\n\u201cScale guaranteed to be second-hand and almost new. $45 more cash balance 15 month. Order accepted. Julius Bender, Max Meyer, agent.\u201d\nThe goods were delivered at defendant\u2019s store the next day. His son, who was in charge of the store, would not accept the register, but wanted to keep the scales. The driver brought both back to the store of plaintiff, who has since retained them for defendant, to whom they were again tendered at the trial.\nWhen the goods were delivered none of the parties present were able to work the register. Defendant\u2019s son supposed that it was out of order. According to plaintiff\u2019s testimony, denied by defendant, plaintiff phoned to the son that he would send a man out the next day to look it over, and that if he took them back he would keep them in the store on defendant\u2019s own responsibility. The driver\u2019s testimony, denied by defendant, was that he stated that they would send a man out that afternoon or the next day to show how it worked.\nOne witness who was present at the time of delivery and who tried to work it but could not make it add, said that a spring seemed to be broken, but this same witness was unable to make it add at the trial, whereas another witness, who knew the machine, demonstrated at the trial that it worked all right. A machinist testified that he had put it in good repair just before it was delivered.\nThe trial judge was clearly justified under the conflicting testimony in concluding that the machine was in good condition when tendered, and that the inability to work it was due, not to a broken spring or to any other defect, but to a lack of knowledge on the part of defendant\u2019s son and the other witnesses.\nUnder such a finding of facts, the plaintiff would be entitled to recover the purchase price. The sale was executed; the goods were specified and a partial payment made. Even though plaintiff was under a duty to put the goods in good condition and to deliver them, nevertheless the title had passed at the time of the sale.\nThe defendant\u2019s refusal to accept the goods as tendered could not without plaintiff\u2019s assent thereto effect a rescission of the sale and revest the title in him. If plaintiff testified truthfully, he never consented hut on the contrary notified defendant that he held the goods in storage for him. The measure of damages for goods bargained and sold, the title to which has passed to the buyer, is the purchase price, not the difference between the contract and the market price. Ames v. Moir, 130 Ill. 582; Osgood v. Skinner, 211 Ill. 229.\nWhile the evidence would not justify a recovery under the common count for goods sold and delivered, but only for goods bargained and sold, a bill of particulars alleging a sale and delivery is not to be treated with the same strictness as a formal pleading in fourth class cases where written pleadings are dispensed with. Dunsworth v. Wood Machine Co., 29 Ill. App. 23. The allegation of delivery will be regarded as surplusage. Moreover, no objection was made in the trial court on the ground of such variance.\nThe judgment will be affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Justice Mack"
      }
    ],
    "attorneys": [
      "John C. Trainor, for plaintiff in error.",
      "Mayer, Meyer & Austrian, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Julius Bender, Defendant in Error, v. Paul Lundberg, Plaintiff in Error.\nGen. No. 14,780.\n1. Sales\u2014what does not justify rescission. If the title to goods sold has passed to the vendee, the fact of their disrepair (the vendee being under an obligation to put them in good condition), does not justify rescission.\n2. Measure oe damaqes\u2014in action for goods bargained and sold. The measure of damages for goods bargained and sold, the title to which has passed to the buyer, is the purchase price, and not the difference between the contract and market price.\n3. Municieae Court\u2014how bill of particulars in fourth class case construed. In fourth class cases a bill of particulars is not to be construed with the same strictness as is a formal pleading.\nAssumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.\nAffirmed.\nOpinion filed January 18, 1910.\nJohn C. Trainor, for plaintiff in error.\nMayer, Meyer & Austrian, for defendant in error."
  },
  "file_name": "0326-01",
  "first_page_order": 344,
  "last_page_order": 347
}