63 Ill. 26 | Ill. | 1872
delivered the opinion of the Court:
The record presents but a single question, viz: did the court err in sustaining the demurrer interposed to the second plea?
The action is founded on a promissory note. In the second plea it is alleged .that there Avas a total failure of the consideration in this, that the note was given for the ice to be formed on the ponds at the reservoir of the appellees, near the city of Springfield, during the winter next following, viz: the winter ending with the spring of the year 1870, and that no ice of any value was formed upon the ponds during that period, and that whatever ice was formed on the ponds was wholly worthless to the appellant.
It will be observed that it is not alleged that there was any guaranty or warranty that any particular quantity or quality of ice would be formed, or indeed, that any at all would be formed during that period.
It is not denied that some ice was formed during that winter. It was the agreement of the appellant that he would pay the sum of money named in the note, for whatever did form. But it is alleged that whatever ice did form “was wholly worthless to” the appellant.
It is a complete answer to this allegation, that the appellees never promised that the ice that should be formed would be of any value to the appellant. It is dpubtless true that all the ice that would make on the' ponds during any winter, would be worthless to some persons; still to persons in that line of business it would be valuable. It does not follow that because the ice that did make'ivas worthless to the appellant, it was not, nevertheless, a valuable article of merchandise.
But if the facts set up in the plea were well pleaded, we do not think they would constitute any* defense to the note. The appellant was bound to know, and did know, that in this latitude, during some winters, a good deal of ice would make, and in others but very little. With this knowledge on his part, he deliberately elected to pay so much money for whatever ice would be formed during that period, be the quantity great or small, or the quality good or inferior, and no reason is perceived why he should not be bound by his agreement, in the absence of any warranty or fraudulent practices on the part of the appellees.
It is not a subject of inquiry whether the contract was wise or unwise on the part of the appellant, or whether it was profitable or unprofitable. It is enough to know that the contract was fairly made in reference to a subject about which it was lawful for the parties to contract.
The cases cited by counsel for appellant, supposed to be illustrative of the one at bar, are not analogous. In those cases the subject matter of the contract between the parties was supposed to be in existence at the time, but when it was ascertained that the property was not in existence, it was held that there was a failure of the consideration.
The demurrer was properly sustained and the judgment is affirmed.
Judgment affirmed.
