author: Mr. Presiding Justice Thompson Mr. Justice Philbriok

text:
    William D. Barnes, Appellee, v. A. C. Barnett et al., Appellants.
    1. Exchange of property, § 8

      —when fraud in inducing exchange of land. In an action for fraud and deceit practiced on plaintiff to induce him to make an exchange of his land, the undisputed evidence held to conclusively prove a conspiracy on the part of defendants to defraud the plaintiff.
    2. Fraud, § 20*—when statements concerning land not expression of opinion. Statements made concerning the value of land, the price of adjoining land, that the land had no hard pan under it, that could easily be tiled and that there had been a large loan made on it, held to be statements of material facts and not expressions of opinion.
    3. Vendor and purchaser, § 39*—when purchaser entitled to recover for fraud and deceit. Where artifice and fraud are used to prevent a purchaser from inquiring about or making an examination of the land, the fact that the vendor has examined the land does not destroy his right to recover for fraud and deceit. '
    4. Release, § 21*,—when contract does not constitute. Where a plaintiff, who had been fraudulently induced by the defendants to exchange his land for other lands, entered into an agreement with the heirs of defendants’ grantee of plaintiff’s land whereby the plaintiff agreed to surrender his possession of the land in consideration of $2,000, with a certain reservation of the right to litigate the rights of plaintiff and defendants in the lands, held that the agreement did not constitute a release of defendants in a suit against defendants for fraud and deceit in inducing plaintiff to make the exchange.
    5. Exchange of property, § 8*—admissibility of evidence. In an action for fraud and deceit in inducing plaintiff to exchange his land for Missouri land, evidence offered by defendants to prove the value of plaintiff’s land held inadmissible for the reason it was immaterial and not relevant to the issues in the case where the only question was whether there was fraud and deceit in the conveyance of the Missouri land.
    6. Release, § 29

      —sufficiency of instruction on effect of contract. In an action for fraud and deceit in inducing plaintiff to make an exchange of lands, an instruction given for plaintiff which told the jury that a' certain contract between plaintiff and the heirs of defendant’s grantee of plaintiff’s land “is not a release of a joint tort feasor” and that it should be considered by them only as evidence on the question whether defendants are guilty of fraud and misrepresentation, held not subject to the criticism that it is peremptory in its nature and withdraws from the jury a part of the facts in the case, but held erroneous in telling the jury that they should consider the contract as evidence on the question of fraud.
    7. Appeal and error, § 1779*—when errors in instruction not ground for reversal. The Appellate Court will not reverse for errors in instruction not raised by appellants.
    8. Exchange oe property, § 8*—measure of damages in action for false representations. In an action for fraud and deceit practiced on plaintiff to induce him to exchange his land for Missouri land, an instruction telling the jury that if plaintiff was entitled to recover he would be entitled to the difference between the value of the Missouri land as it was at the time of the sale and what it would have been worth if the representations of defendant had been true, with interest at five per cent., held to ’state the correct measure of damages.
    9. Appeal and error, § 1011*—when improper remarles of counsel not saved for review. Improper statements of counsel in his argument to the jury, not saved for review where the trial judge has not certified to any statements of counsel and there is no exception to any of his statements.
    10. Appeal and error, § 1011*—method of saving improper remarles of counsel for review. The Question of whether or not improper or prejudicial argument was made to the jury cannot be saved by ex parte affidavits; the statements must be certified to by the trial judge in the bill of exceptions.
    11. New trial, § 67

      —when newly-discovered evidence insufficient to constitute ground for. Newly-discovered evidence is insufficient as ground for a new trial where it is only cumulative and in the nature of impeaching evidence and would have not changed the verdict.
    Philbrick, J., took no part in the decision of this case.
    Appeal from the Circuit Court of Champaign county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Ceidiorari denied by Supreme Court (making opinion final).
    L. B. Saffer and John J. Bea, for appellants.
    Egbert P. Burkhalter and Dobbins & Dobbins, for appellee.

       See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the . opinion of the court.

This is an action on the case, brought by William D. Barnes against A. C. Barnett, George P. Bliss, A. R. Scott and James E. Sunderland to recover damages for fraud and deceit averred to have been practiced on the plaintiff by the defendants in the exchange of real estate.

The case was tried upon the second amended count of the declaration which avers that in May, 1909, the plaintiff was the owner of certain described real estate, consisting of 494 acres in Champaign county, Illinois, and 320 acres in Walsh county, North Dakota; that it was agreed between plaintiff and defendants that all said real estate was of the fair cash value of over $60,000 above all incumbrances and liens thereon and that the defendants conspired together to cheat and defraud plaintiff out of his said real estate and to exchange therefor certain described real estate in the county of St. Charles, Missouri, which they knew to be worth not more than $24,500, by fraudulently inducing the plaintiff to accept said real estate and pay therefor the sum of $70,350, subject to an incumbrance thereon of $24,500, in exchange for his equity in said lands in Illinois and North Dakota. The count pleads certain acts of the defendants in furtherance of the alleged conspiracy, and further avers that defendants induced the plaintiff to visit the Missouri land for the pretended purpose of appraising wheat growing thereon and that they afterwards kept plaintiff under their control and represented to him that the Missouri land was of the value of $70,000 and that an insurance company had loaned $16,000 thereon, when the said land was worth not to exceed $22,000 and the mortgage on it was $6,500; that the land could not be purchased for less than $200 per acre when in fact it could be bought for $60 per acre, and that plaintiff was not familiar with the value of farm lands in Missouri, which was known to defendants; that defendants knew the representations made by them were false and that plaintiff relying on such representations conveyed his land to A. 0. Barnett at an agreed price of $123,-000 and was fraudulently induced to purchase said Missouri land and pay therefor the sum of $70,350, and to assume an incumbrance of $16,000 and to execute a mortgage thereon to said Barnett for the sum of $8,500, which said incumbrances were more than the value of said Missouri land, to the damage of appellee of $60,000.

The defendants filed three pleas; (1) The general issue, (2) a plea of former adjudication and (3) a plea of release which avers that plaintiff had accepted $2,000 from the heirs of S. T. Busey, deceased, in full of all damages arising out of said transaction. Issue was joined on the general issue and replications filed denying the special pleas, and on these issues were joined.

On a trial before a jury a verdict in favor of plaintiff for $58,168,54 was returned against all the defendants on which judgment was entered, and Bliss, Scott and Sunderland prosecute this appeal.

It is contended that the judgment cannot- be sustained on the evidence and that the judgment is excessive. The record disclosed that appellee, in 1909, was a bachelor farmer of the age of sixty-six years living on a farm consisting of 280 acres near Gifford, Illinois, in Champaign county, on which were various mortgages, the principal of which amounted to $37,-400. About a year prior to that time he had bought another farm of 214 acres near Bondville, in the same county, known as the John F. Busey farm. At the time he purchased the Busey farm he gave a mortgage to Busey for $30,000 covering both his Illinois farms. There was also a mortgage of $5,000" on his Dakota land. He was also indebted on some judgment notes, which he had given in the purchase of some oil stocks. Appellants Scott and Sunderland are partners and real estate agents having offices in the city of Champáign. It was through their agency that appellee bought the Busey farm. Appellee had, early in 1909, placed the Busey farm and his Dakota land in the hands of Scott and Sunderland for sale fixing the price on the Busey farm at $225 an acre, telling them he wanted to sell it as interest was eating him up. Appellant Bliss is in the real estate brokerage and abstract business in the city of Urbana and advertised that he dealt in southern timber land. Sunderland and appellee had been raised in the same neighborhood and had been acquainted with each other for many years. Scott, Sunderland and Bliss appear to have been well acquainted with appellee’s financial affairs.

Defendant Barnett, who does not appeal, is an attorney residing at McLeansboro, Illinois, and his business appears to be dealing in real estate. In February, 1909, Bliss wrote to appellee telling him that he had better get out of debt and trade his farm for a farm in the south. Later he again wrote appellee informing him that judgments had been entered against him on some notes, and that he had better look out for executions against his corn and other personal property. Appellee did not answer these letters. In February, 1909, Bliss began correspondence with an abstracting firm composed of Ben L. Emmons and Ben L. Emmons, Jr., at St. Charles, about twenty miles from St. Louis, Missouri, stating that he wanted some options on some Missouri lands and inclosing some blank forms of options, which he stated in his letter would “draw blood in a suit in chancery for specific performance.” The letter further states: “I have exchange contracts which I enclose and agreement for deed that also makes the attorney for defendant scratch his head some.”.

The record does not disclose how Barnett first became connected with the transaction involved in this case, further than that he testified that he had had some conversation with Scott and Sunderland about trading some property he was about to acquire with some of their customers, and that the first time he saw appellant about this trade was May 13, 1909. However, on April 20, 1909, he had written to appellee from Urbana on the stationery of Bliss that he was in Urbana, and wanted appellee not to fail to come and see him. Appellee did not answer this letter. Barnett next appears in St. Charles, Mo., at Emmons’ office, where he represented himself as an attorney representing Col. Busey and Bliss, and proved that he represented Bliss by showing the correspondence between Emmons and Bliss with reference to the option. At Emmons ’ office he desired to be shown some farms on which options could be secured. Before this time, but when the evidence does not disclose except that it was before any talk was had with appellee about the trade that was subsequently made, there had been an arrangement made between Bliss, Scott, Sunder-land and Barnett that they were each to have twenty-five per cent, of the profits made in any deal with appellee. All the appellants and Barnett testified to such an agreement.

After looking at various farms Barnett was shown the Perly Beynolds farm of 339 acres lying near the Mississippi river. Beynolds had only owned this farm two months. Barnett asked Beynolds the price of the farm and Beynolds told him $65 an acre. Barnett secured an option on this farm to Emmons bearing date May 8,1909, giving him the right to take the farm at $22,000, which only bound Emmons for the payment of $1 for the option. By the terms of the option Emmons had the right to assume a mortgage for $6,500 on the farm and give a second mortgage for $4,000 as part of the purchase money and the deed was to be made to Emmons or his assigns or to any person he might elect. This option has written on it an assignment dated May 12th from Emmons to Bliss and on the same date an assignment from Bliss to Barnett,

After this option had been secured Barnett informed Emmons that Scott and Sunderland would be down with a buyer the next day, and asked him to arrange for a conveyance, preferably an automobile, to take them to see the farm and told Reynolds “to go duck hunting the next day” as “they were going to show the farm to a prospective buyer, and they thought it best that he be away, as they did not want the buyer to talk with the owner.” Barnett then left for St. Louis. Emmons testified that Barnett asked him to telephone to a certain hotel in St. Louis as soon as Scott and Sunderland started to return to St. Louis with the prospective buyer, this however is denied by Barnett.

Appellee was induced by Sunderland to go to St. Charles on May 13th and look at the Reynolds land, but there is a conflict in the evidence as to the purpose for which he went there. Appellee testified that Sunderland came to his farm near Gifford when he was burning brush -on the side of the road and said to him, “Hello Billy, I got a buyer for your land.” Appellee said, “That’s nice, when are going to show it,” and Sunderland replied, “Well, I want you to go to Missouri and estimate a piece of wheat for me.” And arrangements were made to go to St. Charles. Sunder-land testified that appellee had told him he wanted to sell or trade all his land in Illinois and Dakota, and that about May 10th, at appellee’s farm near Gifford where he was burning brush, he, Sunderland, said to appellee that he knew a party that had 340 acres in Missouri that he held at $210 an acre who would entertain a trade for appellee’s land, and appellee said he was very busy but would go down the next day and look at it. Appellee and Sunderland went to St. Louis on May 12th, stayed at the Majestic hotel all night and the next morning went to St. Charles, where it was raining hard and they went to a hotel. Sunderland then went to get a rig to drive out to look at the farm, as he says, and at the wheat, as appellee says, and returned with a surrey with Scott and Emmons, Jr., in it. Appellee greeted Scott, “Hello, Scott, you down here, what are you doing here?” and Scott replied he was there on business and appellee replied, “I didn’t expect to meet you here. ’ ’ Appellee testified Scott asked him if he would go out and estimate the wheat. Sunderland, Scott, Emmons and appellee drove to the Reynolds farm about six miles from town and on the way appellee’s attention was called to a field of alfalfa. After arriving at the Reynolds farm they did not enter either of the houses on it, nor did appellee see Reynolds, or appear to pay any attention to the quality of the land although Scott got out of the surrey at one place and got a handful of -soil and showed it to appellee and called his attention to some clover and the drainage. Scott endeavored to show appellee how the farm would drain and appellee suggested that drainage would depend on whether there was hard pan in the soil and Scott replied there was no hard pan in that country. The evidence shows that there is an impervious clay, which is hard pan, under the farm. Appellee stated to those with him that he would be surprised if the wheat turned out twenty bushel to the acre and did not get out of the rig while on the farm except in the barn into which they drove because of the rain. The evidence shows that the land in St. Charles county which lies in the Mississippi slope is what is known as “Black Stick” or “gumbo” and is hard pan land and that it is not worth over $40 to $60 an acre, while the land on the Missouri slope is a sandy loam, fertile and readily sells at from $200 to $300 an acre. On the way back to St. Charles, Scott and Sunderland called appellee’s attention to various farms. Scott pointed out a farm called the Nippenberger farm, and said a man had paid $100 an acre for a half interest in it a few days previous, when as a matter of fact he had only paid $50 an acre, and various other farms were pointed out as worth from $250 to $400 an acre which could have been bought for a third of the price named by Scott.

It is also shown by the evidence that a deed of the Reynolds farm to Barnett was executed and placed in escrow the day before appellee visited the farm and that the day the deed was made Scott went to the telegraph office to send a message to some person.

When Scott and Sunderland with appellee started on a car back to St. Louis, Emmons telephoned to the Majestic Hotel, as he testified he had been requested by Barnett to do, that they had started for St. Louis, and Scott, Sunderland and appellee met Barnett as soon as they arrived back in St. Louis. Scott and Sunderland appear to have kept appellee in their company until they arrived back in Champaign, and in Champaign Scott took appellee with him to his hotel or rooming house and the next morning, May 14, 1909, he with Scott and Sunderland went to the office of Bliss, where Barnett shortly appeared and a written contract, witnessed by all appellants was entered into for the conveyance of all appellee’s lands to Barnett, reserving to appellee the possession of the 280 acre farm near Gifford until March 1, 1910, and of the Reynolds farm to appellee. At the same time appellee executed and delivered a deed conveying to Barnett •all his land in Illinois for the consideration of $106,-447, subject to all indebtedness of record against it, and a deed of the Dakota land for the consideration of $16,000 subject to the $5,000 mortgage on it. The deed of the Illinois land to Barnett was recorded May 14th.

On the same day Barnett made a deed of the Reynolds land to appellee for the consideration of $70,350, subject to present mortgage indebtedness not to exceed $16,000. This deed was acknowledged before appellant Bliss, who was a notary public, but was held by Bliss about a month, until some other trust deeds in addition to the $6,500 already on this land conld be placed upon it and recorded. A few days before May 14, 1909, Barnett with Bliss went to S. T. Busey, a wealthy resident of Champaign, and told him he was about to buy some land which he' expected to trade to appellee and wanted to borrow $9,000. On June 14th, Barnett made a deed of trust on the Beynolds land to Ben Emmons, Jr., securing four notes, each for the principal sum of $2,000 and interest at six per cent, per annum. This trust deed was recorded June 15th at 11 a. m. The deed of the Beynolds land to Barnett was not recorded until after appellee executed a trust deed on that land to S. T. Busey, trustee for Barnett, securing a note for $8,977 to Barnett which was assigned by him before this suit was begun. This trust deed was recorded June 15th at 12 m. Appellee did not receive any money on this trust deed, but it was received by Barnett and used by him with three of the notes to Emmons and with $500 realized on the other note to Emmons, which had been discounted at a bank, to pay the purchase money due Beynolds above the $6,500 mortgage on the land. There is evidence that Bliss told appellee that Col. Busey was the purchaser of his Illinois land and that it was Busey’s way of doing business to have the title go through a third party. The record of the evidence is very voluminous and while there is much contradictory evidence we do not deem it necessary to review it at further length.

The prominent undisputed facts conclusively prove a conspiracy on the part of appellants and Barnett and show a very clear case of fraud and deceit on the part of appellants with Barnett to defraud appellee in the conveyance to him of the Beynolds land. Neither Barnett nor appellants had any real interest in the Beynolds land when the contract was made with appellee ; all they had was an option to buy it at $22,000. Before delivering the deed to appellee they had it mortgaged'in the sum of $23,477, which includes the $6,500 on it before they procured the option. The mortgages amounted to more than its value.

Appellee got nothing for his Illinois and Dakota land. The appellants knew that appellee was ignorant of the value of the Missouri land and so maneuvered with appellee that he would not discover the fraud that was being perpetrated on him.

Appellants deliberately and falsely stated the value of the land conveyed to appellee; they falsely stated to him the selling price of adjoining lands; that the land was a sandy loam; that there was no hard pan under it; that it could easily be tiled and that there had been a loan of $16,000 on it. These were material facts and not expressions of opinion. Hughes v. Lockington, 221 Ill. 571; Douglass v. Treat, 246 Ill. 593; Leonard v. Springer, 197 Ill. 539. Where artifice and fraud are used to prevent a purchaser from inquiring about or making an examination of the land, the fact that the vendor has examined the land does not destroy his right to recover for fraud and deceit. Hughes v. Lockington, supra. Appellee was not a resident of the locality where the land was located and he had a right to rely on the representations of appellants. Ladd v. Pigott, 114 Ill. 647; Wenegar v. Bollenbach, 180 Ill. 222. Appellee was induced by the fraud of appellants to take it at $210 per acre. Eeynolds only asked $65 an acre and the evidence shows it was worth less than the option price. Even at $65 an acre appellee was defrauded out of $48,575, which with interest to the time of the trial would make the verdict and the judgment for the correct amount.

There is nó evidence whatever in support of the second plea or that the matters in controversy here were ever involved in any other suit.

A bill in chancery by appellee against the heirs of S. T. Busey, Mrs. Busey, appellants and Barnett was prepared to be filed, but never filed, for a cancellation of the deeds made by appellee to Barnett and a deed made by Barnett conveying the same land to Busey. This bill was never filed but on December 3, 1909, an agreement was made between Mrs. Busey and appellee by which in consideration of $2,000 paid by Mrs. Busey to appellee he should surrender to Mrs. Busey possession of the farm near Gifford, the possession of which to March 1, 1910, had been reserved to appellee in the contract of May 14th, and that all the lands originally owned by appellee should be sold at not less than certain stated prices within one year from the date of the agreement, and after the moneys due the Busey estate should be paid the balance of the moneys received should be held subject to the claims of Bliss, Scott, Sunderland, Barnett and one George M. Thompson, who was the attorney for appellee. This was a contract to hold in escrow the proceeds of the sale of the lands until the right of the parties should be settled by litigation. No fraud is charged against Busey, and the payment of the $2,000 for the possession of the land, with the reservation of the right to litigate the rights of appellee and appellants in the lands or the proceeds thereof, cannot be a release of appellants in a suit for fraud and deceit as is claimed under the third plea.

It is contended that the court erred in refusing to permit appellants to prove the value of the lands conveyed to Barnett by appellee.

There was no issue before the court on that question, the only question was the fraud and deceit in the conveyance of the Reynolds land to appellee. The evidence offered was immaterial and not relevant to the issues in the case for the reason the averment with the proof is that appellants took appellee’s land at an agreed price concerning which there is no allegation of fraud. Drew v. Beall, 62 Ill. 164; Stanhope v. Swafford, 80 Iowa 45; Matlock v. Reppy, 47 Ark. 148; Hecht v. Metzler, 14 Utah 408, 60 St. Rep. 911.

Appellants contend that the fourth instruction given for appellee was erroneous “as it is peremptory in its nature and withdraws from the jury part of the facts in the case.” This instruction told the jury that the contract between plaintiff and the heirs of S. T. Busey “is not a release of a joint tort feasor” and that it should be considered by the jury only as evidence on the question of whether defendants are guilty of fraud and misrepresentation. The instruction was only peremptory in telling the jury that it was not a release of appellants. It was the right and duty of the court to construe the agreement, and the court did not err in the particulars contended for by appellants for the reason there is not a shadow of evidence tending to show that Busey was a joint tort feasor and the agreement is not a release of any person. The instruction, however, was erroneous in telling the jury that they should consider it as evidence on the question of fraud. It was a transaction inter alios and not proper to be considered, on the issue of whether appellants were guilty of fraud, but the appellants have not raised any question over that part of the instruction and an Appellate Court should not reverse for reasons not raised by appellants.

It is also stated on behalf of appellants that the instructions on the measure of damages given at the request of appellee are erroneous, but it is not pointed out in what way they are erroneous. The instructions told the jury that if plaintiff was entitled to recover he would be entitled to the difference between the value of the Missouri land, as it was at the time of the sale and what it would have been worth if the representations made by the defendants had been true, with interest at five per cent. This is the correct measure of damages as announced in Schwitters v. Springer, 236 Ill. 271.

It is also contended that the case should be reversed because of statements made by counsel for appellee ■ in his closing argument to the jury. The trial judge' has not certified to any statements made by counsel, neither is there any exception to any statements of connsel. There are incorporated in the record contradictory affidavits made by appellants and by counsel for appellee as to what was said in argument. The trial court does not certify which, if either, is correct. The question of whether or not improper or prejudicial argument was made to a jury cannot be saved by ex parte affidavits. The statements made must be certified to by the trial judge in the bill of exceptions. Peyton v. Village of Morgan Park, 172 Ill. 102; Mayes v. People, 106 Ill. 314; People v. Nall, 242 Ill. 284.

Appellants contend that a new trial should have been granted because of newly-discovered evidence. The newly-discovered evidence as set forth in the affidavits filed is only cumulative and in the nature of impeaching evidence. It would not have changed the verdict and was not of sufficient importance to have required the granting of a new trial.

Finding no reversible error the judgment is affirmed.

Affirmed.

Mr. Justice Philbriok

took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    John M. Jones, Appellee, v. August Minks, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court- of Champaign" county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.
    Statement of the Case.
    Action by John M. Jones against August Minks on six judgment notes after a judgment by confession, entered in vacation in the office of the circuit clerk, had been opened up with leave to defendant to plead to the declaration. Defendant, after filing certain pleas claimed not to be material to the issues before the Appellate Court, filed two additional pleas, the first averring a failure of consideration as to all the notes except the sixth and the other averring failure of consideration as to the other note. At the close of defendant’s evidence the court excluded it and directed the jury to find in favor of plaintiff for the full amount of all 'the notes. Thereupon an order was entered vacating the order opening up the judgment, and it was further ordered that the original judgment remain in full force. To reverse the judgment, defendant appeals.
    The only questions raised on the appeal concern the sustaining of an objection to certain evidence offered by defendant and the giving of the peremptory instruction.
    The facts show that appellee, Jones, is a local agent of the International Harvester Company and that appellant is a tenant farmer; that agents of the Harvester Company induced appellant to purchase a gasoline tractor and plow upon representations that the tractor had the same power as a 28 horse power steam engine, that it used a gallon of gasoline per horse power per day of ten hours, that it would pull eight plows plowing ten inches deep and was better than a steam engine for running a threshing machine.
    The contract for the purchase of the tractor was in writing and contained a clause that- appellant purchased the same subject to the conditions printed on the back. The warranty has several lengthy and involved conditions attached to it and provides among other things:
    “INTERNATIONAL HARVESTER COMPANY OP AMERICA (Incorporated) hereby warrants said thresher, attachments and engine to be well made, of good material, and durable with proper care, and to do good work if properly operated by competent persons, with sufficient power, and the printed rules and directions of the manufacturer intellingently followed. If, after three days’ trial by the purchaser said property shall fail to fulfill the warranty, written notice thereof shall at once be given to said company at Harvester Building, Chicago, Illinois, and also to the agent through whom the-same was purchased, stating wherein it fails to fulfill the warranty, and reasonable time shall be allowed said company to send a competent man to remedy the difficulty, the purchaser rendering necessary and friendly assistance. Said company reserves the right to replace any defective parts, and, if then the machinery cannot be made to fulfill the warranty, the part that fails is to be returned by the purchaser, free of charge to the place where received and the company notified thereof, and, at the company’s option, another substituted therefor that shall fill the warranty, or the notes and money for such part immediately returned, or the amount credited on the notes that have been given, and no further claim shall be made on said company.
    Failure to make such trial, or to give notice as herein provided, shall be conclusive evidence of the fulfillment of the warranty, and the company shall be released from all liability,” and “that no representations made by any person as an inducement to give and execute the within order shall bind the company,” and “This express warranty excludes all implied warranties * *
    Appellant contends and by his pleas avers that the agents of the Harvester Company fraudulently and deceitfully made the following untruthful representations to him as an inducement to him to purchase its tractor: (1) That the upkeep and maintenance of the tractor was less than the upkeep and maintenance of a steam engine of like power; (2) that the gasoline tractor would do the same work a steam tractor would do fully as satisfactory and at less cost; (3) that the gasoline engine was more easily handled than a steam engine; (4) that the gasoline tractor would operate on a gallon of gasoline per horse power per day of ten hours; (5) that the gasoline tractor would pull eight plows plowing ten inches deep and would also pull a harrow and drag after it; and (6) that the gasoline tractor would operate a shelter and separator as satisfactorily as would a steam traction engine.
    Abstract of the Decision.
    1. Sales, § 326*-—when parol evidence admissible to show fraudulent inducement in suit on note given for purchase money. In an action by a seller against the purchaser on notes given by the latter as a part of the purchase price for an article sold to him by the seller, where the defendant filed pleas of failure of considerations in the nature of pleas of fraud and deceit, in that the defendant was induced to execute the contract of sale by false and fraudulent representations as to the nature and value of the article sold, held that parol evidence was admissible to show the alleged fraud and deceit, though there was a clause in the contract of sale excluding all implied warranties and providing that no representations made by any person as an inducement to execute the contract shall bind the seller.
    2. Sales, § 314

      —when defense of fraud in inducing sale available. The existence of an express written warranty does not exclude a defense based on fraudulent misrepresentations inducing the sale.
    LeForgee, Vail & Miller, for appellant.
    Dobbins & Dobbins and Green & Palmer, for appellee; O. Barth, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Joseph Lewis, Appellee, v. Drainage Commissioners of Drainage District No. 1 of the Town of Young America, Appellants.
    1. Appeal and error, § 932

      —how bill of exceptions may not be amended. A bill of exceptions cannot be amended in the Appellate Court by affidavits.
    2. Appeal and error, § 784*—language of bill of exceptions. It is immaterial whether the language óf the bill of exceptions is in the present or past tense.
    3. Trial, § 295*—when propositions of law must be -submitted. Propositions of law not presented until after the court has announced its decision may be properly refused.
    4. Trial, § 296*—duty of court to consider propositions of law. The number of propositions of law is no legal reason for refusing to pass on them; when they are properly presented the court should pass on a sufficient number of them to cover all legal questions in the case.
    5. Appeal and error, § 1725*—when decision on former appeal not res adjudicata. A decision of the Appellate Court on a former appeal is not res adjudicata on a subsequent appeal where the issues on the last trial were entirely different from those on the first.
    6. Drainage, § 51*—when recovery for work in cleaning ditch sustained by the evidence. In an action against drainage commissioners to recover for services rendered by plaintiff in repairing and cleaning out a drainage ditch, alleged to be a branch in the system of defendants, evidence held sufficient to sustain a finding and judgment in favor of plaintiff.
    Appeal from the Circuit Court of Edgar county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    H. S. Tanner, Charles G. Eckhart and Green & Palmer, for appellants.
    Fred Rhoads, James W. & Edward C. Craig and Donald B. Craig, for appellee; Frank J. O’Hair, of counsel.

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, same topic and. section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal by the Drainage Commissioners of Drainage District No. 1 of the Town of Young America, Edgar county, Illinois, from a judgment in favor of appellee for $4,828.85, recovered for services performed by appellee in repairing and cleaning out a drainage ditch known as “The Grilkey Branch” in a system of drainage averred to be part of the system of appellants.

The bill of exceptions recites that “upon the completion of the evidence in this case and after both the plaintiff and the defendant had rested their respective cases, the court announced that each party would have one hour for argument of the said case; and be it further remembered that thereupon the said case was argued by the attorneys for the respective parties, and that after the arguments of counsel had been completed the Judge of said court began to announce his finding and decision in reference thereto and announced that his finding would be in favor of the plaintiff and thereupon, after the announcement of the said finding and during the delivery by the court of his reasons for said finding, the defendant offered the propositions of law hereinafter referred to in his bill of exceptions and the Judge of said court announced, when the same were offered, that they were offered too late and also announced that the number of the propositions of law were too great to be considered, and he would not consider them in any way as they were not argued or referred to in the argument and announced that he would mark them all refused without reading the same, because they were too numerous and wholly exceeded in number, propositions of law that were necessary for the decision of this case; and thereupon the Judge of the said court without reading the said propositions of law or any of them, and without considering the same in any way, for the above and foregoing reasons marked each and all of the said propositions ‘refused’ as follows * * The -foregoing is followed by thirty-seven proposition of law, all of which are marked “refused” and which extend over twenty-nine pages of the record.

Appellants have attempted in this court to amend the bill of exceptions by changing the phrase “the Judge of said court began to announce his finding and decision in reference thereto and announced that his finding would be in favor of the plaintiff.” The only change they insist should be made is that the last-quoted sentence “is in the past tense and in recitative form and not in the present tense nor in the language used in court records.” A bill of exceptions cannot be amended in an Appellate Court by affidavits. The question whether the bill of exceptions fully and fairly represents the facts occurring in the presence of the trial court is confided to his judgment and his decision is final. Dreyer v. People, 188 Ill. 40; 3 Encyc. of PI. & Pr. 446. It is also material whether the language of the bill of exceptions is in the present or past tense, and were it couched in the present tense it would not be of any advantage to appellants.

It is apparent from the bill of exceptions and the affidavits of counsel for appellant, if we are at liberty to refer to them, that counsel for appellants were in court with an unnecessary and unreasonable number of propositions of law, prepared to present them to the court and ask a ruling tbereon, if the court should decide against them, and to withhold them if the court should decide in their favor. Section 61 of the Practice Act as amended in 1907 (J. & A. if 8598), provides: “Upon a trial by the court either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write ‘refused’ or ‘held,’ as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court. In any case so tried the court shall find specially upon any material question or questions of fact which shall be submitted in writing by either party before the commencement of the argument.”

The record does not show that there is any rule of the Circuit Court of Edgar county fixing the time in which propositions of law are to be presented. It is apparent that before any offer was made to present the propositions of law to the court that the Judge had announced his findings and what his judgment would be, and was giving his reasons for his findings and judgment before appellants desired and made any attempt to present their propositions. The object and purpose of presenting propositions of law is to aid the court in arriving at a correct conclusion and proper judgment in cases tried by it without a jury. They can serve no useful purpose unless they are presented to the trial court “before the decision is rendered.” “If they can be submitted at any time after such final decision they would not only cease to serve any useful purpose, but would become a hindrance, rather than an aid, to the speedy administration of justice. If such a practice should be allowed, no one but the defeated party would ever submit any such written propositions to the court, and such party would prepare and submit them, not for the purpose of aiding the court in coming to a correct conclusion, but, in the light of the decision already rendered, would do so in order to provide himself with a lever to overturn the judgment on appeal.” It would correspond with a request to the court to pass upon instructions tendered after verdict. Allman v. Lumsden, 159 Ill. 219. The propositions should be submitted before any intimation from the court as to what the decision will be. Mann v. Learned, 195 Ill. 502; American Cent. Ins. Co. v. Henninger & Co., 87 Ill. App. 440.

The number of the propositions presented is no legal reason for refusing to pass on them. When they are properly presented the court should pass on a sufficient number of them to cover all legal questions in the case. The record showing that the propositions were not presented before the court had announced his decision, there was no error in refusing them.

This is the second appeal of this case to this court. The opinion on the former appeal containing a statement of the facts as they then appeared is in 161 Ill. App. 570. The case was reversed because of error in sustaining a demurrer to two special pleas. It is now contended that the judgment of this court on the first appeal is “res judicata” not only to the questions of fact and of law which were decided in the former suit but also to the grounds of recovery or defense which might have been but were not presented. The pleas to which it was held a demurrer was erroneously sustained averred, in substance, that the work done under the contract sued on was not done on a ditch which was a part of the system of appellants, but was the ditch of a subdistrict, known as District No. 4, in Young America Township, organized under section 43 of the Farm Drainage Act (J. & A. ft 4520) for the purpose of local or more minute drainage and emptying into the ditch of appellants. To these pleas, after the case was remanded, the appellants filed replications that the ditch cleaned out was a part of the original system of appellants as adopted and determined upon in the original plan and made a part of the system of drainage of appellants, but of which appellants, because of a shortage of funds, had only constructed the lower portion although the funds for constructing said system were raised from all the lands in said district, and that the landowners in the upper part of the district had formed a subdistrict and completed the ditch in appellants’ system in place of by mandamus appellants to complete their original system.

A rejoinder to the replications was filed setting up that a subdistrict known as Drainage District No. 4 had been organized and had cleaned out the part of the Grilkey ditch constructed by appellants and had finished the construction of the ditch known as “The Grilkey Branch” above that part of the ditch dug by appellants and that said Drainage District No. 4 was organized for the purpose of completing the system of appellants. The pleading was continued through sur-rejoinders and rebutters averring the dissolution of said Subdistrict No. 4, and the organization of District No. 4, and other facts until issue was joined.

Appellants also, after the case was remanded, filed a special plea averring that the appellants, after determining upon the cleaning out of said ditch, gave notice of the time and place of the letting and the kind and amount of work to be done in the manner provided by statute, and in accordance with said notice met and opened bids and rejected all bids, and without readvertising for bids let the contract to appellee. To this plea a replication was filed denying the rejection of all the bids and averring that they, at the time the bids were opened, negotiated with the lowest bidder and offered the work at a price lower than the lowest bid and that the contract was made with the lowest bidder at a price lower than the lowest bid, and on this issue was joined. The foregoing states the substance of the material averments upon which issues were joined.

The issues on the last trial were entirely different from those on the first appeal. This court on the former appeal only passed upon two questions, the ruling of the court in sustaining a demurrer to special pleas which was held to be erroneous and the right of a drainage district to contract for doing work which is no part of its system, but which is exclusively the work of another drainage system over which the original district has no jurisdiction. The case was tried the last time upon issues made in special pleas, that presented issues that were not involved on the first trial, for the reason that the court had by sustaining a demurrer to the pleas held that they did not set up any defense, and a new plea was filed, setting up an issue that was not suggested in any way on the first appeal. On this trial the evidence showed that the work done was on the system of appellants and not that of another system. A drainage district organized within another drainage district or partly within and partly without another district for the purpose of local and more minute drainage is not authorized to clean out or improve ditches specified in the order embracing the plans of the main district. People ex rel. Parmenter v. Wilder, 257 Ill. 304; Mason & T. Spec. Drain. Dist. Com’rs v. Griffin, 134 Ill. 338.

The argument of appellants that the judgment on the first appeal is res judicata on all questions of law or fact that either were tried, or might have been presented, if applicable as against appellee would also deprive appellants of the right to file pleas concerning the manner of letting the contract, since appellants by proper plea might have presented the question concerning the letting of the contract. Furthermore, if the matters in controversy were adjudicated and there was nothing further to try, the cause should not have been remanded, as under the contention of appellants all that the trial court could do was render a judgment in favor of appellants, and permit the parties to incur needless costs. The former judgment of the Appellate Court was a general reversal and was neither final nor conclusive between the parties. It is only binding on the present appeal as to questions of law passed upon. Henning v. Eldridge, 146 Ill. 305; Friedman v. Lesher, 198 Ill. 21; Illinois State Trust Co. v. St. Louis, I. M. & S. Ry. Co., 217 Ill. 504; Hovland v. McNeill & Higgins Co., 104 Ill. App. 149. The judgment of the Appellate Court in the former opinion is not an adjudication of the matters involved.

The merits of the case are with the appellee. The evidence shows that the work was done under a contract between the parties strictly according to the contract and to the satisfaction of all parties concerned. The evidence sustains the finding of facts and the judgment of the trial court. The defenses urged are of a technical character, and while, if the legal question was properly raised, we do not wish to be understood as approving of the letting of contracts by municipal corporations in the manner the evidence tends to show this was let, or of holding to be legal the letting of municipal contracts that are let in any other manner than strictly as provided by the statute, yet since there were no propositions of law submitted to the court before the announcement by the court of its decision, there is no question of law saved for review. Mutual Protective League v. McKee, 223 Ill. 364; La Salle County v. Milligan, 143 Ill. 321; Cramer v. Burkhalter, 207 Ill. 34; Keating v. Springer, 146 Ill. 481; Wight v. City of Chicago, 234 Ill. 83; City of Alton v. Foster, 207 Ill. 150; Chicago, B. & Q. R. Co. v. City of Ottawa, 165 Ill. 207; Burgener v. Lippold, 128 Ill. App, 590. The judgment of the trial court is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Thompson Mb. Justice Scholfield

text:
    The People of the State of Illinois ex rel. I. N. Cooley, Appellant, v. Commissioners of Highways of the Town of Embarrass, Appellees.
    1. Roads and bridges, § 125

      —when petition for mandamus to compel relocation of road properly dismissed. A petition on the relation of a landowner for a writ of mandamus to compel the highway commissioners to relocate a road, held properly dismissed where there was no proof that the road asked to be relocated was ever opened or used and it appeared that the present road had been used for forty-nine years.
    2. Roads and bridges, § 151*—when old highway will be regarded abandoned by location of new road. Where a highway has ceased to be used and another is acquired with the consent of the public authorities, and the use of the original highway has ceased for a sufficient length of time to clearly indicate an acceptance by the public of the new highway, the old highway will he regarded as abandoned.
    3. Estoppel, § 93

      —applicability to public. While the statute of limitations does not run against the L,ublic, the doctrine of estoppel may apply.
    4. Mandamus, § 129*—sufficiency of petition. A petition for a writ of mandamus must show a clear right to the relief sought to be obtained.
    5. Appeal and ebbor, §. 528*—when legal questions not saved for review. When no propositions of law were presented to court trying the case without a jury and no question is raised concerning the introduction of evidence, no legal question is saved for review.
    Scholfield, J., took no part in the decision of this case.
    Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholeield, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    W. H. Hickman, for appellant; F. T. O’Hair and F. C. Van Sellar, of counsel.
    Shepherd & Trogdon and James W. & Edward 0. Craig, for appellees.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The People of the State of Illinois, on the relation of I. N. Cooley, filed a petition in the Circuit Court of Edgar county alleging that in March, 1864, the Commissioners of Highways of the Town of Embarrass laid out and declared open a road described in the petition for it as “commencing at the Northeast corner of Section 36 of Piersol Brown, and at a road running west to the line of Douglas County, and running one mile east on the section line of 30 and 31, in town 15 N. of B. 13 W. to intersect a road running as far west and to the corner of Sections 30 and 31,” thence north, etc. The survey and order opening the road describes it as commencing at a rock at the southwest corner of section 30. The petition further alleges that when said road was staked out by the Commissioners, through an error as to the exact location of the south line of section 30, the road as staked out deviated from said line, and has since been used over the same route at the west end, the north line of said road as used being fifty-nine feet south of the true south line of said road as laid out, and running thence diagonally northeast for a distance of thirty rods before the road as used by the public joins the line of the true road; that the fence on the north side of said road as used for its entire length was within the boundaries of said road as laid out; that a. petition to build a hard road between sections 30 and 31 has been acted on and a vote taken to levy a tax to build said road but said hard road cannot be built on said road as it now exists, and that it is the duty of the Commissioners to keep said road open as originally laid out and to cause all obstructions to be removed, and prays a writ of mandamus, etc. The Commissioners answered the petition denying all its allegations and stating that a public road is now and has been in exactly the same location as it- was when originally laid out; that it has been taken care of by the Commissioners during all the time since it was opened; that the fences and buildings along it have been located in conformity therewith; that the relator and the Commissioners are estopped from insisting that the road is not in its proper location and that the road described in the petition, if ever laid out, has been abandoned by the public and the route used has been acquired by the public and that the relator has not the clear legal right to have the road opened as prayed. Upon a hearing before the court the writ was denied and the petition dismissed. The relator prosecutes this appeal.

There is practically no controversy over the facts. One Hiram Sandford owned the land on both sides of the road when it was-opened, but the relator now and for nearly ten years has owned the northwest quarter of section 31. CL P. Lycan, a surveyor and city engineer of the city of Paris, testified that he found the rock at the northeast corner of section 36 in the center of the road, as it now exists, and that he found the rock at the southwest corner of section 30, sixty feet north of the north line of the highway. From this evidence it appears that there is a jog of nearly seven rods between the ends of the east and west section lines in these adjoining townships. The petition for the road described the road as beginning at the northeast corner of section 36 at a road running west to the line of Douglas county, and the new road was to run thence ' ‘ one mile east on the Section line of 30 & 31.” The order of the Commissioners made in 1864 shows that they had caused a survey to be made and that the road was ordered laid out commencing at a rock at the southwest corner of section 30 and the road runs thence east. The evidence shows that after the road was staked out, a fence was built on the north side of it in 1866 as it was staked out and that fence has remained in the same location to the present time, and there is a hedge on the south line of the highway as it now exists that has been there for over twenty years. It is clear that the highway as it now exists has been in the same location for forty-nine years.

While the statute of limitations does not run against the public yet the doctrine of estoppel may apply. The land on both sides of the road has been transferred and the present owners became possessed of it with a road kept up by the Commissioners in its present location, which is where it was originally staked out. The location is not sought to be changed by the Commissioners but by a landowner who desires the road relocated, and there is no proof that the highway was ever opened or used where the relator now desires to have it located.

Where a highway has ceased to be used and another is acquired with the consent of the public authorities, and the use of the original highway has ceased for a sufficient length of time to clearly indicate an acceptance by the public of the new highway, the old highway will be regarded as abandoned. City of Peoria v. Johnston, 56 of Town of Embarrass. 45; Highway Com’rs Town of Lanesville v. Kinahan, 240 of Town of Embarrass. 593; Galbraith v. Littiech, 73 of Town of Embarrass. 209; Town of Lewiston v. Proctor, 27 of Town of Embarrass. 414; Champlin v. Morgan, 20 of Town of Embarrass. 181; People v. Davis, 39 of Town of Embarrass. App. 162. The reasons for the estoppel of the appellant are much more forceful than in any of the cases cited because a highway never was opened or used where the relator now seeks to have it located, and the road as now located has been used for forty-nine years and has no-jog in it.

A petition for a writ of mandamus must show a clear right to the relief sought to be obtained (Parish v. People, 203 of Town of Embarrass. 374), and that clear right does. not appear here.

No propositions of law were presented and no question is raised concerning the introduction of evidence, hence no legal question is saved for review.

The trial court properly refused the prayer of the petition and dismissed the writ. The judgment is affirmed.

Affirmed.

Mb. Justice Scholfield

took no part in the decision of this case.


text:
    Frank Whisman, Administrator, Appellee, v. G. H. Small, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myebs, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 6, 1914.
    Statement of the Case.
    Action by Frank Whisman, administrator of the estate of Laura B. Whisman, deceased, against G-. H. Small to recover damages for the death of Laura B. Whisman, the wife of Frank Whisman, alleged to have-been caused by malpractice of defendant. The first count pf the declaration averred that the defendant, a physician, was called to attend the deceased in her confinement and that he negligently infected the deceased at the time of the delivery of a child with erysipelas and thereby caused her death. The second count averred that the defendant did not exercise the degree of care commensurate with the standard of medical skill in the vicinity of Leroy, the residence of the deceased, and did not make as many professional visits as the seriousness of the case required, and that he wilfully abandoned the case and refused to give further treatment. A trial resulted in a verdict and judgment for plaintiff for two thousand five hundred dollars. To reverse the judgment, defendant appeals.
    Welty, Sterling & Whitmore, for appellant.
    Stone, Oglevee & Franklin and Leslie J. Owen, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court,

Abstract of the Decision.

1. Witnesses, § 131*—when defendant incompetent to testify to conversations in suit drought dy administrator. In an action against a physician to recover for the death of plaintiff’s intestate alleged to have resulted from malpractice, refusal to permit the defendant to testify to a conversation held between himself and a nurse in an adjoining room to that occupied by the patient and which could have been heard by the patient, and to a conversation between himself and the patient in which the nurse took part and concerning which the nurse had testified, held not error.

2. Witnesses, § 93*—exceptions to section 2 of Evidence Act construed. Neither the second nor the fourth exception to section 2 of the Evidence Act, J. & A., If 5519, permits a party in interest to testify to a conversation he may have had with the deceased, whether it was testified to by an agent of the deceased or by a disinterested witness, nor do they permit an adverse party to testify to a conversation of such adverse party that occurred before the death in the presence of the deceased and which is testified to by a disinterested witness not an agent of the deceased.

3. Witnesses, § 48*—dur-den of proving grounds of incompetency. The presumption is that one offered as a witness is competent to testify, and the burden is upon the party objecting to state and prove the grounds of his objections.

4. Witnesses, § 43*—competency to testify to conversations with defendant’s wife. In a suit against a physician to recover for the death of plaintiff’s intestate alleged to have resulted from malpractice, where the facts showed that a nurse attending the patient called up the doctor’s office and was answered by the doctor’s wife, held that under section 5 of the Evidence Act, J. &. A., j[ 5522, neither the nurse nor the doctor’s wife were competent to testify to the telephone conversation for the reason that there was no evidence to show that the doctor’s wife was acting as agent for her husband.


text:
    David E. Bell, Appellee, v. Joseph E. Bennett, Executor, Appellant.
    1. Executors and administrators, § 262

      —right of heir to contest claims. Heirs have the right to object to the allowance of a claim presented against an estate.

      2. Bills and notes, § 408

      —burden of proving execution. An affidavit denying the execution of a note sued on places the burden of proving its execution by the alleged maker on the plaintiff.
    3. Bills and notes, § 462*—when instruction as to burden of proof of execution erroneous. In an action to have a note allowed against the estate of the alleged maker where one of the heirs'filed an affidavit denying its execution, held that an instruction given for plaintiff which placed on the estate the burden of proving that the signature to the note was not the signature of the deceased, was erroneous.
    4. Bills and notes, § 406*—burden of proof. In an action to have a note allowed as a claim against the estate of the deceased maker, the burden is upon the estate to prove that there was no consideration for the note and that it had been wholly or in part paid.
    5. Instructions, § 81*—when improper as giving special prominence to part of the evidence. An instruction directing the attention of the jury to particular entries made in books of account which were admitted in evidence, held improper as giving special prominence to a particular part of the evidence.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed .and remanded.
    Opinion filed May 5, 1914.
    Store & Gray, for appellant.
    John Fuller, Herrick & Herrick and Ingham & Ingham, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

David E. Bell filed a claim in the County Court of DeWitt county against the estate of his father, David E. Bell, deceased. An appeal was taken from the judgment of the County Court to the Circuit Court where on a trial before a jury a verdict was returned in favor of claimant for $1,970.18, on which judgment was rendered. Joseph E. Bennett, the executor of the estate of the deceased, and who is also a son-in-law of claimant, and three of the heirs prosecute this appeal.

The claim as sworn to by claimant is:

“To board, lodging, care and attention and special attention in sickness furnished and rendered to David Bell from the 27th day of April, 1909, to the 5th day of October, 1910, at $20 per week..........$2,580.00 To principal due on note................. 1,000.00 To interest on same at 5 % from July 11,1912 18.62 ’ ’

In the Circuit Court an affidavit made by J. W. Bell was filed, which states that affiant “is the son of David Bell deceased and one of the heirs at law of said David Bell deceased; that he has examined the note which is a portion of the claim sued on in this case; that he is acquainted with the handwriting of David Bell, deceased, and that he believes that the signature of the note for one thousand dollars on which a portion of this suit is based is not the genuine signature of David Bell deceased.” Heirs have the right to object to the allowance of a claim presented against an estate. Section 60, Administration Act (J. & A. j[ 109); Schlink v. Maaston, 153 Ill. 447; Mason v. Bair, 33 Ill. 194.

The affidavit denying the execution of the note placed the burden of proving its execution by the alleged maker on the appellee. Section 52, Practice Act (J. & A. 8589). The evidence is conflicting as to whether the signature to the note is the signature of the deceased. In that condition of the evidence it was necessary that the instructions on that issue should be accurate. The twelfth instruction given for appellee is: “The court instructs the jury that the note in evidence, if executed by the deceased, David Bell, is prima facie evidence that at the time of its execution, David Bell was indebted to the plaintiff, David E. Bell, for the full amount specified in the note; and, before the defendant can defeat that claim, he must prove by a preponderance of the evidence that there was no consideration for the giving of the note, or that it has been paid, or that it has not the genuine signature of David Bell attached thereto

The latter part of this instruction places on the estate the burden of proving that the signature to the note is not the signature of the deceased, while the law is that the burden of proving the signature is on the appellee, when the execution of the instrument had been denied by an affidavit made by one of the heirs to the estate.

It is also contended on behalf of appellant that there was no consideration for the note and that it was a gift from the deceased to. the appellee, and if the note was executed by the deceased that it had been wholly or in part paid. Upon these questions the burden of proof was upon appellant. - If the appellee proved the execution of the note by the deceased by'a preponderance of the evidence, then appellee would be entitled to recover for the full amount of the note, unless the appellant sustained by a preponderance of the evidence some one of the other defenses claimed.

A book kept by the deceased containing several pages of accounts was offered and admitted in evidence. The fourth instruction given at the request of appellee directed the attention of the jury particularly to the entries on “page 91 thereof.” Instructions should not direct the jury’s attention to particular portions of the evidence and thereby give such evidence special prominence.

Since the case must be reversed for the errors pointed out we refrain from expressing any opinion on its merits. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    James W. Gullett, Appellant, v. George W. Leaverton and Grace Leaverton, Appellees.
    1. Fraud, § 72

      —when declaration in action for fraud and deceit sufficient. A declaration in an action on the case for false representations and deceit on the part of defendants to induce plaintiff to purchase real estate, held not demurrable because it did not allege the contract was in writing.
    2. Fraud, § 72*— sufficiency of declaration in action for fraud and deceit. In an action on the case for false representations and deceit alleged to have induced plaintiff to purchase real estate, the contract of sale need not be pleaded as if the action were based on the contract, but so much of it should be set forth as will describe the wrong sought to be redressed.
    3. Fraud, § 58*—averments and proofs to sustain action for fraud and deceit. To recover for fraud and deceit all that is necessary to aver and prove is that the representations made were untrue, that the party making them knew them to be false, that the representations made were material to the transaction and were made with intent to deceive, that the party to whom the representations were made relied upon them as true, and was induced to act by reason of such representations and was misled and damaged thereby.
    4. Vendor and purchaser, § 39*—when false representation of vendor material. Representation made by a vendor to a proposed purchaser of a city lot that the main pipes of the city heating plant were in the street in front of the lot so that a building desired to be erected on the lot by the purchaser could be connected with the plant, held not to be a statement puffing the value of the lot but a statement of a material fact.
    5. Vendor and purchaser, § 42*—when purchaser need not investigate vendor’s representation. Where a vendor makes a representation that a city lot was situated on a street in which the mains of the city heating plant were laid, the purchaser may rely on its truth without investigating the representation.
    6. Fraud, § 72*—when counts in declaration demurrable as indefinite. Counts in a declaration for fraud and deceit in inducing plaintiff to purchase city lots, which averred that defendants knowingly and falsely represented that the mains of the city heating plant were accessible to it, held demurrable as indefinite in so far as they state the mains were accessible.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 5, 1914.
    Noah Gullett, G. B. Gillespie and A. M. Fitzgerald, for appellant.
    Smith & Friedmeyer, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

James W. Gullett begun this action in case against Grace Leaverton and George W. Leaverton for fraud and deceit averred to have been used by defendants in making the sale of a city lot to. plaintiff. A demurrer was sustained to the declaration and judgment entered in favor of the defendants. The plaintiff appeals.

The declaration contains four counts. The material averments of the first count are: That appellant purchased from appellees certain real estate in the city of Springfield; that the inducement which caused appellant to purchase this property was the false representations of appellees that “City Hot Water Heat” was accessible to the said premises and that the main pipes of the “City Hot Water Heating Plant” were laid in the street in front of them so that the owner thereof could attach and connect heating pipes thereto from the said premises and heat buildings thereon; that such representations were false and fraudulent; that appellees well knew that these representations were false and fraudulent, and made them for the purpose of deceiving appellant; that appellant did not know that they were false; that because of these representations appellant, relying upon them, was induced to and did purchase the premises in question, and that because of such false and fraudulent representations appellant has suffered damage of one thousand dollars.

The second count contains the further averment that appellees knew appellant desired to purchase a lot on which to erect a flat building.

The third and fourth counts omit the averment that the pipes of the heating plant were laid in the street in front of the lot but aver that appellees knowingly and falsely represented that they were accessible to the said premises.

The demurrer states as a special cause that the declaration is insufficient because each count is based on a supposed contract for the sale of real estate, and it is not alleged that said contract is in writing. The contract not being the foundation of an action on the case for false representations and deceit, need not be pleaded as if the action were based on the contract, but so much should be set forth as will describe the wrong sought to be redressed. 8 Encyc. of PI. & Pr. 909.

To recover for fraud and deceit all that is necessary to aver and prove is that the representations made were untrue, that the party making them knew them to be false, that the representations made were material to a transaction and were made with intent to deceive, that the party to whom the representations were made relied upon them as true, and was induced to act by reason of such representations and was misled and damaged thereby. Merwin v. Arbuckle, 81 Ill. 501; Crocker v. Manley, 164 Ill. 282.

The appellees insist that the representations averred in the declaration were only puffing or exploiting the value of the lot. The averment of the declaration is that appellant desired to purchase a lot for the purpose of erecting thereon a “flat building,” so situated that it could be connected with the mains of the city heating plant and heated therefrom; that appellees knew the wishes of appellant and falsely and fraudulently represented that the lot they sold appellant was so situated. The representations made were representations of fact which it is averred were untrue. The statement that the main pipes of the heating plant were in the street in front of the lot was neither puffing the value nor a statement concerning the value but was a statement of a material fact. Heating mains are not obvious to the inspection of people, and there was no reason or cause for appellant to suspect the statement was false. It was not necessary for him to investigate the representation; he had the right to rely upon its truth. Endsley v. Johns, 120 Ill. 469; Antle v. Sexton, 137 Ill. 410; Linington v. Strong, 107 Ill. 295; Van Velsor v. Seeberger, 59 Ill. App. 322.

The counts that state the mains were accessible are indefinite and as to those two counts the demurrer was properly sustained, but the first and second counts state a good cause of action and the demurrer should have been overruled as to them. The judgment is reversed and the cause remanded with directions to overrule the demurrer to the first and second counts.

Reversed and remanded with directions.


text:
    Paul O. Moratz, Appellee, v. Maurice C. McCarthy, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of McLean county; the Hon. Homer W. Hall, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action by Paul 0. Moratz against Maurice 0. McCarthy to recover an amount due on an order for $77.67 given to plaintiff by defendant on a settlement of a building account. The suit was begun before a justice of the peace and an appeal was taken to the County Court. The court on the day the case was set for trial denied defendant’s motion for a continuance, but postponed the trial until the next day. Defendant failing to appear on the following day, plaintiff recovered a verdict and judgment for $82.50. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    Continuance, § 51*—when denial of motion not error. A denial of defendant’s motion for a continuance made on the day the case was set for trial on the ground that defendant and his attorney had no notice of the setting of the case for trial and that defendant could not he ready on that day because he did not know the whereabouts of two of his witnesses, who were in the city of Bloomington, and because another witness was in Taylorville, held not error where it appeared the court offered to postpone the trial until 1:30 p. m. the next day and counsel stated he could not be ready by that time, hut the court did postpone the trial to the following day and no reason appeared showing why defendant could not have been ready the day the case was tried if he had used any diligence to procure his witnesses after the hearing was postponed.
    Counsel for appellant made a statement of the case but filed no brief or argument.
    DeMange, Gillespie & DeMange, for appellant.
    Livingston & Bach, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Edward F. Trego, Trustee for use of William Moore and Alfred H. Trego, Appellant, v. The Estate of James A. Cunningham, Deceased, Appellee.
    1. Principal and surety, § 96

      —insolvency of cosureties as affecting right to contribution in law and equity. In a suit at law against a cosurety for contribution, the surety can only recover a cosurety’s aliquot part calculated on the hole number of sureties without reference to the insolvency of tl cosureties, while in equity, if one or more are? insolvent, the loss . ipportioned among the solvent ones.
    2. Contribution, § 2*—fui,. -¿ycition of Probate Court to follow the

      rule in equity. Where a trustee tor the use of sureties on notes presented a claim against the estate of a deceased cosurety, held that the Probate Court could follow the rule of a court of equity as to the extent of recovery, by considering the number of insolvent cosureties and apportioning the loss on the solvent ones.
    3. Bills and notes, § 177—when indorsers liable as guarantors and cosureties as to each other. The provisions of paragraphs 2 and 3 of sec. 64 of the Negotiable Instrument Act of 1907, J. & A. If 7703, make indorsers, before delivery of a note payable to the order of the maker, guarantors and cosureties as regards each other.
    4. Bills and notes, § 183*—liability of indorsers as to each other. In determining the liability of indorsers to each other, section 68 of the Negotiable Instrument Act of 1907, J. & A. If 7707, should be read in connection with the provisions of section 64 of such Act, J. & A. If 7703.
    5. Courts, § 105*—equitable jurisdiction of Probate Courts. Although Probate Courts have no general chancery jurisdiction, yet in probate matters they have jurisdiction of an equitable character, may adopt the forms of equitable proceedings and grant relief of an equitable nature where justice and equity require such relief.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914,
    Rehearing denied June 25, 1914.

      Certiorari allowed by Supreme Court.
    H. M. Steely, H. M. Steely, Jr., and J. B. Mann, for appellant.
    Dyer & Dyer, Bearick & Meeks and Frank Bindley, for appellee.

       See Illinois Notes Digest, Vols I to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Edward F. Trego, trustee for the use of William Moore and Alfred H. Trego, presented to the Probate Court of Vermilion county two claims against the estate of James A. Cunningham, deceased. The claims are for contribution to the amounts alleged to have been paid by the trustee on behalf of the beneficiaries on notes made by the Hoopeston Horse Nail Company, payable to itself and which, before delivery, were indorsed by the company and James A. Cunningham, William Moore, Alfred H. Trego, John L. Hamilton, C. S. Crary and W. W. Todd.

One of the claims is for $110,601.58 being one-third of the sum of $331,804.76 that claimant insists he paid for the beneficiaries in satisfaction of seventy-six of said, notes. The other claim is for $2,017.61, one-third of the sum of $6,052.84 which claimant insists was paid by him for the beneficiaries in satisfaction of four other notes. From the judgments rendered in the Probate'

Court appeals were taken to the Circuit Court, where by agreement of the parties they were consolidated and tried by the court without a jury. A judgment was rendered in the consolidated case allowing the claim to the amount of $47,626.46 as of the seventh class, to be paid in due course of administration. An appeal was prayed by both parties and the claimant has perfected his appeal.

The appellant assigns as error that the court should have entered judgment in his favor for $95,252.92, and that the evidence showing that Todd, Crary and Hamilton were insolvent; the court should have held the estate liable for one-third of the amount paid by the trustee in satisfaction of the notes of the company, while it only held the estate liable for one-sixth of the sum paid by the trustee.

The appellee has assigned cross-errors and contends (1) that the five surviving indorsers of the notes loaned their credit to the company after the death of Cunningham and that the principal debtor paid the notes; (2) that Moore’s and Trego’s names were indorsed above Cunningham’s name on the notes and that therefore they cannot have contribution without proof of a contract that all indorsers should be equally liable; (3) that a large part of the notes and interest was paid with the assets of the company; (4) in holding the propositions of law submitted by appellant; and (5) that the judgment is excessive. Other errors are assigned but are not argued.

Counsel for appellant state in their argument that the court only rendered judgment for one-sixth of the amount that it found had been paid by the beneficiaries of appellant ás coindorsers of the notes of the company, and counsel for appellee in their statement and argument admit that the court only rendered judgment for one-sixth of the amount so paid. There is nothing in the record that justifies such statement of appellant and the admission of appellee. The ruling of the court on the propositions of law and fact presented by appellant shows that the court held that appellant was entitled to recover one-third of the amount paid by the beneficiaries as such indorsers, and this court must review the case as it appears in the record.

The record is voluminous, yet there is little controversy over the facts. Cunningham died January 11, 1910. The Hoopeston Horse Nail Company was a corporation engaged in the manufacture of horseshoe nails and the sale of collar pads. James A. Cunningham, William Moore, Alfred H. Trego, John L. Hamilton, C. S. Crary and W. W. Todd, held all the stock of the company and were directors. The Horse Nail Company, Hamilton, Crary and Todd were insolvent. At the date of Cunningham’s death his name appeared as indorser with the other five stockholders on $318,318.23 of the company’s paper. These notes were about eighty in number and were in the following form:

“$5,000.00 Hoopeston, Ill., July 16, 1909 No.-.
Six months after date, we, or either of us, promise to pay to the order of ourselves Five Thousand and no/100 dollars, value received, with interest at 7 per cent per annum from maturity payable annually at Hoopeston National Bank, Hoopeston, Illinois.
Hoopeston Horse Nail Company, (Seal.)
By A. H. Trego, Pres. (Seal.)
indorsed as follows:
Hoopeston Horse Nail Company,
By A. H. Trego, Pres.
C. S. Crary, William Moore, A. H. Trego, John L. Hamilton, J. A. Cunningham, W. W. Todd.”

except that they differed as to the amounts and dates, and five of them bore interest at a less rate and the order of the indorsers varied, in that while all six directors indorsed the notes, with the exception of one $10,000 note held by the Hoopeston National Bank, on which Cunningham’s name did not appear for the reason he was an officer of the bank, and that sometimes Cunningham’s name was indorsed above the names of either Moore or Trego and sometimes after their names. These notes were held by banks scattered over the States of Illinois and Indiana wherever a hank would discount the paper.

After the death of Cunningham the remaining directors undertook to negotiate with the representatives of his estate to arrive at some agreement whereby the estate would remain liable for its share of the liability on the company’s notes and on new notes that should be issued to pay notes as they matured, but they did not succeed in making any agreement.

At the date of Cunningham’s death the assets of the company consisted of $23,124.33 in the hands of the treasurer, of which $10,000 was derived from the discount of the $10,000 note at the Hoopeston National Bank, about $75,000 worth of merchandise bills and accounts receivable and real estate of the value of $15,000, in all about $113,000.

Immediately after Cunningham’s death a circular letter was sent out by the company to all the holders of its paper advising them of his death, and stating that the paper of the company would be issued as before and indorsed by the five surviving indorsers who were represented to be worth $1,500,000.

The company succeeded in discounting eight notes, amounting to $42,500 made by it and indorsed by the five directors, and with part of the proceeds of these notes it paid six of the notes, amounting to $27,500, included in the itemized claim of appellant. The remaining proceeds of the eight notes, with $56,161.51 received from the sale of nails and pads, was used to retire $40,500 of the notes listed in appellant’s claim and a $2,500 note on which Cunningham’s name was indorsed, but which was probably not negotiated until after his death, it being in the mail at that time, and in paying the expenses of running the business of the company for several months after Cunningham’s death. The remaining notes of the company outstanding at the death of Cunningham with interest at five per cent, from the date of payment, amounting in all to $285,958.76 were taken up with the proceeds of notes executed by the five surviving directors, and on which the name of the company did not appear. Notes executed by these five directors are hereinafter called joint notes.

After the attempt to make an arrangement with the Cunningham estate under which it would remain liable for the indebtedness of the company had failed, the five remaining directors signed a large number of notes in blank, and left them in the custody of Todd, the manager of the company. After February 1, 1910, if the holder of one of the notes on which Cunningham’s name appeared as an indorser with the other directors, wanted payment of his note, he was given a joint note, if he would accept it; if he would not accept such a note, the Horse Nail Company borrowed the money elsewhere on one of the joint notes. The proceeds of the joint notes were deposited in the bank to the credit of the company until May 10,1910, and were paid out by the check of the company in the payment of current expenses of the company, and in taking up notes as they matured the company appears to have used the proceeds as it pleased. A stipulation shows that forty-three notes included in appellant’s claim and including the $40,500 of notes paid with money from other sources than the proceeds of joint notes on which Cunningham’s name appears, the principal of which amounts to $150,718.23, were paid off by the checks of the Horse Nail Company without issuing joint notes to the holders.

After May 10,1910, when a joint note was negotiated the proceeds were placed to the credit of the Horse Nail Company, and when a note came due the company issued its check to Trego, trustee, and the trustee issued his check to the creditor. After November 15, 1910, Trego and Moore furnished cash to pay some notes, and when they furnished cash they took notes executed by the other directors either to themselves or by themselves and the other directors to third parties for their own use.

The appellee insists that because of the method adopted in the payment of the notes of the Horse Nail Company and the method by which the money was procured that was used to pay the notes, that the payment was not made by the beneficiaries of appellant but by the original debtor, the Horse Nail Company. The evidence tends to show that a stock of these joint notes, signed in blank, was kept on hand in the possession of Todd, the manager of the company as the agent of Moore and Trego, and when it was necessary to use one, it was filled in with the date and amount and put in circulation. The Horse Nail Company was insolvent and unable to pay its notes or continue in business without financial assistance. The makers of the joint notes in lending the company their credit and executing their notes to it, which it sold without its indorsement, secured to the company the means with which it paid its notes and for a time continued its business. The transactions up to May 10, 1910, have the appearance of a loan of the credit of the makers of the joint notes rather than the payment of a security debt. After that time the notes were paid by the trustee or the beneficiaries until all the company’s notes were paid. It also appears that Moore and Trego were only making these joint notes for the purpose of paying off the company’s notes that the assets of the company, when reduced to cash, were insufficient to pay, and of which they were the only solvent guarantors.

The appellant offered and the court held the following propositions of law:

“It being shown that six parties endorsed the notes on which the claims in this case are founded, on the back thereof, to-wit: . C. S. Crary, A. H. Trego, William Moore, W. W. Todd, J. A. Cunningham, and John L. Hamilton, and it being shown that C. S. Crary, W. W. Todd and John L. Hamilton are each insolvent, the Court holds it to be the law that the loss should be apportioned equally between William Moore, A. H. Trego, and the estate of J. A. Cunningham, deceased, to-wit, each one bearing the one-third part thereof, with interest.
“2. The Court holds-it to be the law that where several parties are liable as makers, or as sureties, or as endorsers, or as guarantors, and one or more of them pay the debt or demand, they are entitled to contribution from the other solvent makers, sureties, endorsers or guarantors, and that the loss must be apportioned among the solvent parties, equally.
“3. The Court holds it to be the law that in the allowance of claims, on appeal from the Probate Court, the jurisdiction of the Court extends to claims of both a legal and an equitable character, and that the Court acts as a court of equity in the allowance of claims and is governed by the same equitable rules and principles that govern in a proceeding in equity.”

The appellant also asked the court to hold, as a question of law, that Crary, Todd and Hamilton under the evidence were at the time of the death of Cunningham and now are insolvent; this the court marked “Held as a question of fact, only.” The court having held on every proposition of law and fact as requested by appellant, he has no reason to complain concerning the holdings of the court.

Appellee however contends that the court erred in its holding on the propositions of law. The contention of appellee regarding the first proposition of law is that the six indorsers of the notes of the company outstanding at the time of Cunningham’s death were ordinary indorsers, under the provisions of the statute (section 68, Neg. Inst. Act of 1907, Hurd’s B. 5., ch. 98, § 86, J. & A. H 7707) which provides: “As respects one another indorsers are prima facie liable in the order in which they indorse but evidence is admissible to show that as between or among themselves they have agreed otherwise.” It is argued that there is no evidence of any agreement among the indorsers and that in every note Cunningham’s name appears below that of one of the beneficiaries.

The provisions of paragraphs 2 and 3 of section 64 of the Negotiable Instrument Act of 1907 (Hurd’s B. 5., ch. 98, § 82, J. & A. 7703) are an answer to appellee’s contention and have been overlooked. This section of the statute concerns the liability of indorsers in blank before delivery. These provisions are: “2. If the instrument is a note or unaccepted bill payable to the order of the maker or drawer or is payable to bearer he is liable to all parties subsequent to the maker or drawer. 3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.” These provisions clearly make indorsers, before delivery of a note payable to the order of the maker, guarantors and cosureties as regarding each other. The provisions of the statute relied upon by appellee must be read in connection with the provisions of section 64, and the case of Tinker v. Catlin, 205 Ill. 108, was decided before the Act of 1907 was passed and does not control the statute.

If this was a suit at law by a surety against a cosurety for contribution appellant could only recover a co-surety’s aliquot part calculated on the whole number of sureties without reference to the insolvency of the cosureties, while in equity, if one or more are insolvent the loss is apportioned among the solvent ones. Sloo v. Pool, 15 Ill. 47; 9 Cyc. 801; Byers v. Alcorn, 6 Ill. App. 39. Appellant contends that in the allowance of claims a Probate Court is a court of equity. It was said by Justice Cartwright in Thomson v. Black, 200 Ill. 461: ‘1 The common law remedies against a party cease at his death, and the statutory remedies against his estate provided by the Administration act must then be pursued, so far as the probate court is concerned. * * * All demands of every nature are to be exhibited to the probate court for adjustment and to be classified and settled. * * * No regular pleadings are required. * * * Claims not due may be allowed, and the proceedings bear no analogy to proceedings conducted according to the course of the common law. It was not intended by the legislature that claims should only be presented in technical legal forms. * * * The,, proceeding in the presentation and allowance of claims is not according to the common law practice, and there is no' mode of preserving the evidence or exceptions or making them a part of the record as in a suit at law. (Blair v. Sennott, 134 Ill. 78.) It is not governed by technical rules which apply to a formal suit at law. (Scheel v. Eidman, 68 Ill. 193.) In allowance of claims against estates the Probate Court disregards mere matters of form and looks to the substance. (Wolf v. Beaird, 123 Ill. 585.) In a matter where equitable relief is required the court will adopt forms of equitable procedure, and in other cases will secure to parties the rights allowed them by law, for the purpose of arriving at an adjustment of the claim.” The same principles are announced in Dixon v. Buell, 21 Ill. 203; Chicago Title & Trust Co. v. McGlew, 193 Ill. 457; Bliss v. Seaman, 165 Ill. 422; Carter v. Pierce, 114 Ill. App. 589. Although Probate Courts have not general chancery jurisdiction, yet, in probate matters, they have jurisdiction of an equitable character and may adopt the forms of equitable proceedings and grant relief of an equitable nature where justice and equity require such relief. There was no error in the holding of the court on the propositions of law submitted.

No findings of fact were requested by either party except the one as to the insolvency of the three directors, and appellee has not argued the holding of the court on that question. It is not pointed out by either party, wherein it is claimed the court erred in its finding of any facts, except that appellant states that the judgment rendered is for one-sixth of a sum that was paid by him or his beneficiaries on the company’s notes. From the court’s holding on the propositions of law, and the question of fact submitted, it would appear that it rendered judgment for a third of the amount it found had been paid by the guarantors or sureties on the company’s notes. The court apparently held that the $2,500 which was negotiated after Cunningham’s death, the $27,500 paid from company notes negotiated after Cunningham’s death, and the forty-three notes included in the stipulation, the principal of which amounted to $150,718.23, the total amounting to $180,718.23, without interest, were not paid by the beneficiaries as guarantors or sureties, although a large part of these notes was paid from money procured on their credit, since the assets of the company at the date of Cunningham’s death only amounted to $113,500; this would leave notes of the company amounting to $137,600, not including interest thereon, substantially all of which the court found were paid by the appellant or his beneficiaries, as indorsers, and for one-third of which with legal interest the court rendered judgment.

Neither party has pointed out any particular company’s notes that they claim were erroneously included by the court as amongst those paid by the guarantors nor any which were improperly excluded therefrom. The arguments deal in generalities and classes of notes and are devoted in the main to the principles of law involved in the case, and the court properly held on every proposition as requested by appellant. We cannot say that the judgment is not sustained by or is against the manifest weight of the evidence, or that it is not for all that claimant is entitled to recover, and it is therefore affirmed.

Affirmed.