10 Ill. App. 369 | Ill. App. Ct. | 1882
Appellant was sued in assumpsit, and made default. His motion to set aside the default was addressed to the sound discretion of the trial court, and we are unable to say there was such abuse in the exercise of this discretion, as would justify us in reversing the judgment on that ground. Upon the assessment of damages, appellant introduced witnesses, and offered to prove by them that he had paid to appellee or his agents, all, or a portion of the sum for which the forty-seven hogs had been sold. The court sustained objections to this testimony, and exceptions were taken. While a defendant on an inquest of damages, has no right to give any evidence which would defeat the cause of action, yet he may produce such as tends to reduce the damages. While a default admits every material allegation of the declaration, yet it does not admit the amount of damages. The right to maintain the action and recover at least nominal damages and costs, is established, provided the declaration shows on its face a right of recovery. On the execution of a writ of inquiry, the defendant is precluded from denying the plaintiff’s right to these nominal damages, but he has the right to introduce evidence and show the plaintiff has no legal claim to substantial damages. Cook v. Skelton, 20 Ill. 107; C. & St. L. R. R. Co. v. Holbrook, 72 Ib. 419; David v. Bradley, 79 Ib. 316; Madison Co. v. Smith, 95 Ib. 328; see, also, Briggs v. Sneghan, 45 Ind. 14, and authorities there cited.
The refusal of the court below to admit appellant’s testimony was error. The judgment is reversed and cause remanded.
Reversed and remanded.
Bridges v. Haire and Bridges v. Wingorden, and Bridges v. Gallop, involve the same questions as those passed on in the foregoing case of Bridges v. Stephenson; the judgments are therefore reversed and the cases remanded.