Conway v. Case. thereof, that he, the defendant, has on his part, performed, or offered to perform, all the considerations and stipulations assumed by him to be performed by the terms of the bond offered in evidence by defendant in support of his plea. 5. The defendant is not entitled to prevail under his plea of set-off, unless he has shown by his evidence that he on his part has performed, or offered to perform, all the conditions and obligations assumed by him to be performed in and by said bond offered by him in evidence. 6. In making a tender it is necessary that the person who undertakes it shall give the person to whom it is made an opportunity to count the money tendered, if he requests to count it; and if the person who makes the tender, interposes obstacles to prevent such count, and does thereby prevent such count, it vitiates such tender, and a tender under such circumstances is of no binding force in law. 7. If from the evidence in this case the jury believe the witness, Smith, while acting as agent of the plaintiff to receive the money due on the note offered in evidence at the time and place the same fell due, requested to count the money, and was prevented by the defendant or his agent from counting the money tendered upon that occasion, then such tender is void. And for not giving said instructions numbered one and two, and for modifying and giving instructions three, four, five, six and seven, as modified, said plaintiff then and there at the time thereof excepted. Said defendant on his behalf asked said court to instruct the jury as follows: 1. That if they believe, from the evidence, that at the maturity of the note in suit, and at the place where it was payable, the defendant was ready with the sum of money therein mentioned, and offered to pay it to the plaintiff for a proper deed of the lot in question, free of incumbrance, and that said lot was then and there incumbered by a mortgage to Shuster, they will find for the defendant. 2. The law in this case did not require the defendant to make an absolute and unconditional tender of the money, as it would in the case of a debt absolutely due-but he had a right to withhold it and to prevent the plaintiff or his agent from getting possession of it if there was a subsisting incumbrance by mortgage on the lot. It was enough, if he had the amount there and offered to pay it, for an unincumbered title only. 3. If the jury believe, from the evidence, that the defendant, at the Rock Island Bank on the 10th day of October, 1857, had a bag containing gold coin apparently to the amount of $1,680, stated to the plaintiff that it contained that sum, (show Conway v. Case. ing a part of it,) and offered to pay it to plaintiff, for an unincumbered title-and further believe, that the plaintiff did not then and there object that there was not that amount, or required it to be counted or fully shown, but said he would accept it for that sum, it was a sufficient tender of $1,680, on the part of the defendant, although he did not offer to pay it unconditionally, but actually refused to let the plaintiff have it; provided the jury believe, from the evidence, that the lot in question was at the time incumbered by a mortgage from said plaintiff. 4. The only issue in dispute before the jury on the second plea of defendant, is, whether defendant tendered to the plaintiff, at the time and place where the note became due, the sum of $1,680, and if the defendant has proved that fact, he is entitled to a verdict. 5. If the jury believe, from the evidence, that the defendant or his attorney tendered and offered to pay to the plaintiff or his attorney, at any time before the bringing of this suit, the amount of the note sued on, upon condition that the plaintiff would at the same time make to him a warranty deed for lot five, block nine, O. T., Rock Island, free and clear of all incumbrance, and that said plaintiff did not and could not at that time convey an unincumbered title to said lot, the jury will find a verdict for the defendant. 6. That in this case, the defendant was not bound to pay the money on the note sued on, unless he should at the same time receive an unincumbered title to the lot in question; and if the plaintiff could not, by reason of the existence of a mortgage upon said lot, convey an unincumbered title thereto, he could not require the defendant to take a deed from him for said lot and to pay him the money therefor. To the giving of which said instructions, so asked by said defendant, the said plaintiff, then and there and at the time said instructions were so given to the jury by said court, excepted. Whereupon the jury, after argument of said cause by counsel for said parties respectively, and after retiring to consider of their verdict, came into court with a verdict for the defendant, assessing his damages at three hundred and sixty-six dollars. Plaintiff thereupon filed his motion for a new trial, specifying the following causes: 1. For that the court erred in admitting evidence at the trial of said case in behalf of said defendant, which said plaintiff then and there objected to. 2. For that the court erred in refusing instructions to the jury asked for by the plaintiff at said trial. 3. For that the court refused instructions to the jury as Conway v. Case. asked by plaintiff at said trial, and modified and altered the same, and so gave said altered instructions to the jury. 4. For that the court gave the instructions asked for by said defendant, to the jury at the trial of said cause, which said plaintiff then and there objected to, and therein erred. 5. Because said verdict is against law and evidence. Plaintiff also at same time moved an arrest of judgment for the following reasons: 1. Because the said defendant's said several pleas filed herein marked two, three and four respectively, are insufficient in law whereon to pronounce judgment upon the verdict of the jury herein. 2. Because said pleas of said defendant, marked and numbered as aforesaid, are wholly informal and insufficient. But the court overruled said plaintiff's said several motions for a new trial, and arrest of judgment respectively, and refused to grant a new trial of said cause, and also refused to arrest judgment herein, to which said several decisions of said court, refusing a new trial herein, as aforesaid, and refusing to arrest judgment herein, as aforesaid, said plaintiff then and there, and at the time thereof, excepted. The court rendered judgment on said verdict, for said debt, DRURY, Judge, presiding. BEARDSLEY & SMITH, for Plaintiff in Error. WILKINSON & PLEASANTS, and B. C. Cook, for Defendant in Error. BREESE, J. The defense in this action was fully made out. There was no demand by plaintiff's agent to count the money in the bag, and no objection or doubt was expressed, that it did not contain enough. The agent swears this, and also gives it as his belief there was sufficient coin in the bag to pay the amount due, if it was all gold, and the inference is fair, that it was all gold coin, as no other coin fell out of the bag but gold when it was thrown upon the counter. Here was a readiness to pay the money due, fully proved, at the time and place agreed upon. At the same time there was an offer by the plaintiff to deliver the kind of deed he had covenanted to deliver-a general warranty deed, with a covenant against incumbrances. This deed was refused by the defendant, on the alleged ground, that the property was incumbered by a mortgage of fifteen hundred dollars upon it, then subsisting in full force, and unsatisfied. Refusing the deed offered, the defendant's agent left the bank, taking with him the money. Conway v. Case. At law, time is of the essence of a contract to convey land, and if the vendor is not able and ready to perform his part of the agreement on that day, the vendee may elect to consider the contract at an end. The contract in this case was to convey free of incumbrances. The proof establishes the fact, that on the day he offered to convey and tendered the deed, there was a subsisting mortgage upon the lot to the amount of fifteen hundred dollars. The vendor therefore was not able to perform his covenant and the vendee was not bound to receive the deed, though it did contain full covenants, for it was not the covenants for which he contracted, but for a good unincumbered estate, and this he was entitled to before he paid his money. Tyler v. Young et al., 2 Scam. R. 447. But it is said, the court improperly admitted evidence of a subsisting mortgage. The only evidence of the mortgage was the record of deeds, and to its introduction the plaintiff objected in general terms, not assigning any grounds therefor. The record is made evidence by statute without further proof, but to use it the court can require certain preliminary proof, as that the original is lost or not in the power of the party to produce, and such proof, we apprehend, can be given orally to the court, and need not be preserved on the record unless exception be taken to it, or such proof may be waived by the opposite party. When this record was presented, the plaintiff admitted it was the record of the mortgage. The record in this case does not show that the requisite preliminary proof was not made before the introduction of the record of the mortgage, and we must presume, that such proof was made or waived. It is not permitted parties to lie by, and permit evidence to be introduced without specific objections, which is competent in itself, and the objection to which is formal, and can be obviated if made, by proof, and afterwards make the introduction of such evidence ground of objection in this court. If the plaintiff was not satisfied with the record evidence of the mortgage, he should have manifested it, in order that the party producing it, might have produced the original, or accounted for its non-production. This precise point has been decided by this court in the case of Russell v. Whiteside, 4 Scam. R. 11. The court say: "In the absence of the contrary statement in the bill of exceptions, we are to presume that proof of the hand-writing and official character of the register was made before the admission of the certificates in evidence. Nor do we perceive that the court erred in permitting the certified copy of the deed from Jackaway to be read in evidence, etc. It does not appear It does not appear that any question was made in the court below, as to the loss of the original deed, or the inability of the plaintiff to produce it; and we are to 22 140 42a 190 22 140 5la 497 Stumps v. Kelley. conclude that this was either admitted by the defendant, or proved by the plaintiff." See also Gilham v. State Bank, 2 Scam. R. 247, and Harmon et al. v. Thornton, ib. 355. This decision is not at all in conflict with that of Roberts v. Haskell, 20 Ill. R. 59. In that case there was an effort to supply the preliminary proof, which we deemed insufficient. The set-off was properly claimed. The advance payment made by the defendant for the lot could be recovered in this manner. There was the most persuasive evidence presented to the jury, that the check given for it, had been cashed by the plaintiff at the bank. He has no right to retain it, the contract being forfeited by his own act. The judgment of the court below is affirmed. Judgment affirmed. 22 140 22 140 BARBARA STUMPS, Appellant, v. SUSANNA KELLEY, who sues by her next friend, Appellee. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. 197 6309 It is not necessary that there should be a guardian, or prochein amy, for a minor at the time of suing out process. If it were otherwise, the exception should be taken before pleading to the merits. 22 140 109a $356 22 140 110a $132 22 140 111a 165 A similiter may be put to a plea, at any stage, by any party; and it is not error to proceed to trial without it. A judge may of his own motion instruct the jury, and it may often be his duty to do so. The practice of instructing a jury to find for the defendant, as in case of a nonsuit, is not adopted in this State. The evidence is for the jury, and in case of contrariety, the Supreme Court will not interfere, except under peculiar circumstances. A party will be liable for injuries inflicted by a cow or other animal, if the viciousness of the animal is known to the owner; and case, not trespass, is the proper remedy. THIS case is fully stated in the opinion of the court. The cause was heard before J. M. WILSON, Judge, and a jury, and there was a finding and judgment for $500.00. The defendant below appealed. HOSMER & PECK, for Appellant. J. C. WICKER, for Appellee. |