text:
    Edwin D. Morse v. Dennis J. Sweenie et al.
    ■*" o:F thb b0AI)—Meeting at intersection of streets.—The statute as to the right side of the road has no application to a case where travelers in vehicles meet at the junction of two streets. In such case the rule of the common law applies and each person must use reasonable care to avoid a collision such as the place and circumstances require.
    2. Ordinance as to immoderate driving.—The ordinance of the city as to immoderate driving has the force and effect of a statute and is as binding upon the fire department as upon drivers of ordinary vehicles.
    3. Rule of common law as to use of streets—Fire department. —The law does not recognize any privileged class, such as members of the fire or police department of the city, as possessing rights so superior to those of other citizens of the State as to exempt the former from the exercise of proper prudence and care in the use of the streets so as not to cause injury to other persons lawfully upon them. As the instruction given by the court proceeds upon the theory that the fire department had the right of way it is erroneous.
    4. Contributory Negligence.—Where one without his own fault is, through the negligence of another, put in such apparent peril as to cause in him terror, loss of self-possession and bewilderment, and as a natural result thereof, he, in attempting to escape, puts himself in a more dangerous position and is injured, the putting himself in such more dangerous position is not, in law, contributory negligence that will prevent him from recovering for the injury, Where a fire marshal going to a fire was driving immoderately when he turned around a corner, and (he driver of a vehicle was going ata moderate rate of speed and a collision occurred at the intersection of the two streets, and the only fault attempted to be imputed to the driver was that at the moment he saw the marshal coming around the corner he failed to turn his horses to one side so as to avoid the collision, and the evidence showed that the driver was frightened. Held, that the doctrine of contributory negligence does not apply.
    Appeal from the Superior Court of Coolc county; the Hou, Sidney Smith, Judge, presiding.
    Opinion filed November 11, 1884.

      This was an action by Morse against Sweenie, to recover for the value of a horse which had been killed by being struck in the breast by the end of one of the shafts of a one-horse vehicle, which was, at the time, being driven by Sweenie.
    It appeared in evidence, on the trial, that the plaintiff was a livery stable keeper; that about half past ten o’clock p. m., October 27, 1882, plaintiff’s horses and carriage, in the charge of one of his drivers, were carrying some persons westward on West Harrison street, in Chicago, and, as they came within about fifty feet of the northeast corner of Des Plaines street and said Harrison, the defendant, who was fire marshal of said city, came suddenly around said corner with a one-horse vehicle belonging to the fire department, which defendant was driving, but having another person with him; that defendant had entered that vehicle about three blocks north of said corner to go to the south side of the city, in response to an alarm of five; that buildings extended flush up to said corner which defendant turned close thereto, with the intention of going east on said Harrison street; that as he turned the corner he saw the plaintiff’s horses and carriage about fifty ■ feet distant, but so near that, to avoid being struck by the pole of plaintiff’s carriage, he reined his horse directly toward the heads of plaintiff’s horses; that the end of one of the shafts of defendant’s vehicle struck the breast of one of plaintiff’s horses with such violence as to make a hole therein, thereby causing the death of the horse. The evidence on behalf of the plaintiff, and all the circumstances, tended to prove that the defendant, upon the occasion in question, was driving at an immoderate rate of speed; that the driver of plaintiff’s carriage was driving at an ordinary and proper rate of speed, and that contributory negligence was not imputable to him, on account of the position of sudden surprise and danger in which he was placed by the manner in which the defendant drove around said corner.
    The following provisions of the ordinances of the city of Chicago in force therein, were put in evidence: “ Ho person shall immoderately ride or drive any horse in any avenue, street, alley or lane within the limits of this city, under a penalty of not less than two dollars nor more than ten dollars. And it is hereby made the duty of every officer, and it shall be lawful for any citizen to stoj) any person who may be immoderately riding or driving as aforesaid.” Tuley’s Laws and Ord., Tit. Misdemeanors, § 16, p. 78. Also this: “Mo horse, carriage, hook and ladder carriage, or engine shall be drawn faster than a walk on its return from a fire oran alarm of fire; nor shall any such carriage or engine be drawn on any sidewalk opposite a paved or planked street; nor shall any such carriage or engine be drawn toa fire or alarm of fire in a manner calculated to endanger the safety of persons or property in the streets or alleys of said city, under the penalty of not less than five dollars, nor more than twenty-five dollars, to be paid by the person or persons committing the offense.” Tuley’s Laws, etc., Chap. 11, § 31, p. 25.
    At the instance of defendant’s counsel the court gave to the jury this instruction:
    “ The jury are instructed that if they believe, from the evidence, that the defendant, Sweenie, was, at the time of the collision in question, the fire marshal of the city of Chicago, and was, at the time of the collision, responding to an alarm of fire, then you' are instructed that the defendant, as such fire marshal, had a right to proceed at such rate of speed as the exigencies of the situation demanded; and if you believe, from the evidence, that the driver of the plaintiff’s team knew there was an alarm of fire, then it was his duty to keep a lookout for the different apparatuses of the fire department, so, if possible, to avoid collision; and if by reason of his not keeping such lookout, or by not so placing his team, if possible, not to be in the way of the apparatus of the department, and because thereof the collision occurred, then you should find for the defendant.” To which plaintiff excepted.
    Verdict and judgment passed for the defendant, and plaintiff appealed to this court.
    Mr. Farlct Q. Ball, for appellant;
    as to the binding force of an ordinance, cited Heland v. Lowell, 3 Allen, 407; Vandine, pet’r, etc., 5 Pick. 187.

      The statute in regard to the right side of the road applies only to the conduct of travelers at the time of meeting and while passing each other, not to travelers meeting at intersections: Brooks v. Hart, 14 N. H. 307; Adams v. Parker, 12 Metc. 419; Lovejoy v. Dolan, 10 Cush. 496.
    In the latter case the rule of the common law applies: Garrigan v. Berry, 12 Allen, 84; Phelps v. Wait, 30 N. Y. 78.
    Mr. Julius S. Grinnell, for appellee.
   McAllister, J.

The collision in question occurred at the junction of West Harrison and Des Plaines streéts, which cross each other at right angles. The plaintiff’s team and carriage, in charge of one of his drivers, going west on said Harrison street, came to a point near the northeast corner of said streets, when the defendant, driving south on ¡said Des Plaines street, suddenly turned around said corner onto Harrison, to go east thereon.

The point was made on the trial, that plaintiff’s driver was, at the time of the collision, violating the “law of the road,” as it is called; that is, that he was not on the right of the center of the street, but a littie south of it; that this was such contributory negligence as would preclude a recovery.

The statute declai’es that whenever any persons traveling with any carriages shall meet on any turnpike road or public highway in this State, the persons so meeting shall seasonably turn their carriages to the right, so as to permit each carriage to pass without interfering or interrupting,” etc. Cothran’s Stat., p. 1306.

We are of opinion that under the circumstances attending the collision, that statute has no application to the case; and that there being no statute regulating the manner in which persons shall drive when they meet at the junction of two streets, the rule of the common law applies, and each person must use reasonable care to avoid a collision, such as the place and circumstances require. Lovejoy v. Dolan, 10 Cush. 495; Garrigan v. Berry, 12 Allen, 84.

Bnt there was an ordinance of the city in force at the time forbidding immoderate driving under a penalty. That ordinance the city was authorized by its charter to make. It therefore had the force and effect of a statute, and was alike applicable to and binding upon both the fire marshal and the driver of plaintiff’s carriage. Pennsylvania Co. v. Prana, 13 Bradwell, 97, and authorities there cited.

The evidence clearly shows that the defendant was driving immoderately when he turned around the corner from Des Plaines to Harrison street. He says in his testimony, “I" shot around the corner and the circumstances attending the injury show that statement to have been literally true; while on the other hand the evidence shows that the plaintiff’s driver was going at a moderate rate of speed and was in the exercise of ordinary care. Indeed, the only fault attempted to be imputed to him is that at the moment he saw defendant coming around the corner he failed to turn his horses at one side so as to avoid the collision. He could not see the defendant’s approach on account of the building erected on said corner, and the defendant testified that he saw the driver throw up his hands, as he came around, and he knew the driver was rattled—that he had lost his head. The defendant was in fault by reason of the manner in which he drove, under the circumstances; he was guilty of a want of reasonable care and the plaintiff’s driver was without fault, so far as we can discover from this record. The rule is, that whei e one without his own fault is, through the negligence of another, put in such apparent peril as to cause in him terror, loss of self-possession and bewilderment, and as a natural result thereof, he, in attempting to escape, puts himself in a more dangerous position and is injured, the putting himself in such more dangerous position is not, in law, contributory negligence that will prevent him from recovering for the injury. Marks, Adm’r, v. Railroad Co., 30 Minn. 493; Troomley v. Railroad Co., 69 N. Y. 158.

The court instructed the jury in substance and effect that if the defendant at the time in question was fire marshal of the city of Chicago, and was responding to an alarm of fire, then, as sneli marshal, he had a right to proceed at such rate of speed as the exigencies of the situation demanded; and if the plaintiff’s driver knew there was an alarm of fire, then it was his duty to keep a lookout for the different apparatuses of the fire department, so as, if possible, to avoid collision; and if by reason of his not keeping such lookout or by his not placing his team, if possible, so as not to be in the wajr of the apparatus of the department, and because thereof a collision occurred, the jury should find for the defendant.

In our view of the law that instruction was radically erroneous. It contains no hypothesis as to the exercise of any degree of care or prudence on the part of the marshal to avoid injury to others. The ideas conveyed by the instruction to the jury are, that not only the fire marshal but other members of the fire department, in charge of engines, carriages, carts, or other apparatus of such department, have, while going to a fire, or in answer to an alarm of fire, the lawful right to proceed upon the streets of the city at any rate of speed which the exigencies of the situation demand, irrespective of circumstances other than what the exigencies of the situation demand, and irrespective of the exercise of care and prudence to avoid injury to others lawfully being upon such streets; and as a consequence, if other persons, though lawfully upon such streets, happen to know that an alarm of fire, anywhere in the city, has been given, they must, if by any possibility they can, get themselves and their property out of the way of any of the vehicles or apparatus of the fire department, and if they fail to do so and are injured, even by reason of the want of care and prudence of a member of that department, they are remediless in the premises.

The instruction is clearly based upon the theory of law that the fire department, in respect to the use of the streets while going to a fire, or in answer to an alarm of fire, is vested with rights not only superior to, but exclusive of those appertaining to the other inhabitants of the State. We are unable to find any warrant in the law for such a doctrine. In the first place, it is in direct opposition to the provisions of the city ordinances hi evidence, Section 16, of Chap. 28, expressly prohibits immoderate driving in the streets, avenues, etc., of the city by any person, it applied to the tire marshal and his vehicle, as well as to the baker and his. Section 31, of Chap. 11, forbids the drawing of any hose carriage, hook and ladder carriage or engine to a tire or in answer to an alarm of fire in a manner calculated to endanger the safety of persons or property in the streets. That is just what the rules of the common law would prohibit. In the next place the theory of the instruction is in d.rect antagonism to the true, legal one, respecting the nature, uses and purposes of a highway or street. A highway is a passage open to all the citizens of the State, to go and return, pass and re-pass, at their pleasure. Starr v. Camden, etc., R. R. Co., 24 N. Y. Law R. 597.

The fundamental idea of a street is not only that it is public, but public for all the purposes of free and unobstructed passage, which is its chief and primary, but by no means sole use. 2 Dillon on Mun. Corp., 3d Ed., § 683; City of Quincy v. Jones, 76 Ill. 244.

It must, therefore, follow from the very nature, use and purposes of a public street that the law can not recognize any privileged classes, such as the members of the fire or police department of the city, as possessing rights so superior to those of other citizens of the State as to exempt the former from the requirements of the rules of the common law, or in other words from the exercise of proper prudence and care in the use of the streets, so as not to cause injury to other persons lawfully upon them.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Wilson, P. J.

license: Public Domain

text:
    Seth F. Hanchett v. Paul J. Sorg et al.
    Vendor and vendee—Replevin—Disaffirmance of Contract-Return of acceptance.—Where the vendor of goods, sold on a credit, elects to disaffirm the sale for the fraudulent misrepresentations of the vendee in obtaining the goods, if the vendor received a. note or acceptance in payment of the goods, he must first return or offer to return such note or acceptance before he is in a position to bring a suit of replevin for the goods.
    Error to the Circuit Court of Cook county; the Hon. "William H. Barn dm, Judge, presiding.
    Opinion filed November 11, 1884.
    This was replevin brought by the defendants in error, Sorg and Hner, against the plaintiff in error, Hanchett, and Benjamin B. Fay and Lucius W. Conkey, to recover the possession of a quantity of tobacco sold by the defendants in error to Fay and Conkey upon credit, and which had been seized by Hanchett, as sheriff, under certain executions against Fay and Conkey. The declaration contained counts in replevin in the cepit and detinet, also a count in trover.
    To the counts in replevin, the defendants pleaded jointly non cepit) non detinet, property in Fay and Conkey and property in Hanchett, and to the count in trover, not guilty. Hanchett filed a separate plea justifying the taking of the property by him as sheriff under certain executions issued out of the Superior Court of Cook county, in favor of various creditors of Fay and Conkey, and alleging that the property was the property of Fay and Conkey and not the property of the plaintiffs. These several pleas were traversed by replications upon which issues were joined to the country. The case was tried by a jury who found the issues for the plaintiffs and assessed their damages at one cent.
    There was a motion for a new trial, which was sustained as to Fav and Conkey and denied as to Hanchett, whereupon the plaintiffs dismissed their suit as to Fay and Conkey, and judgment upon the verdict being rendered against Hanchett, he excepted and brought the case here'by writ of error. The facts sufficiently appear in the opinion of the court.
    Messrs. Flower, Remy & Gregory for plaintiff in error; cited Doane v. Lockwood. (Illinois Supreme Court opinion not yet reported.)
    Messrs. Rubens & Ames, for defendants in error.
   Wilson, P. J.

In the view we are constrained to take of the case it is only necessary to pass upon a single question, as that will dispose of the present suit. The controversy grows out of a quantity of tobacco sold by the plaintiffs below to Fay and Conkey, wholesale grocers in Chicago, the plaintiffs claiming that they were induced to make the sale on credit b}r false representations by Fay and Conkey as to their solvency and financial standing. The plaintiffs were manufacturers of tobacco at Middletown, Ohio, and shipped the goods in question, with other goods, to Fay and Conkey, on their order, upon a credit of ninety days, taking their acceptance for the amount of the purchase price. There’was evidence tending to show that Fay and Conkey had made fraudulent misrepresentations to the plaintiffs as to their solvency and financial standing, by reason of which the plaintiffs were induced to sell them the goods on credit, and also tending to show that Fay and Conkey were, at the time of ordering the goods, insolvent.

Claiming the right to disaffirm the sale and rescind the contract by reason of the misrepresentations and insolvency of Fay and Conkey, the plaintiffs instituted the present suit without having returned, or offered to return, the acceptance taken in payment for the goods before the bringing of the suit.

It appears that during the trial the acceptance was produced in court by the plaintiffs’ counsel, accompanied with an offer to surrender it to Fay and Conkey, neither of whom, however, was present, and their counsel declined to receive it for them.

At the close of the plaintiffs’ evidence the defendants' counsel moved the court to direct the jury to find for the defendants, upon the ground that the plaintiffs had failed to return, or offer to return, the acceptance given in payment of the goods replevied before the suit was commenced; which motion the court denied and the defendants excepted. The court instructed the jury, in substance, that the fact that an acceptance was given by Fay and Con key to the plaintiffs was no bar to a recovery if the plaintiffs were otherwise entitled to recover under the evidence, and that the offer to surrender the acceptance on the trial placed the plaintiffs’ case in the same position as though no acceptance had been given.

We find it unnecessary to enter upon a discussion of the law applicable to the facts of the present case, since the Supreme Court in the recent case of Doane v. Lockwood, a case entirely like, in its essential features, to the one in hand, have reviewed its previous decisions on this subject, and have laid down the rule that where the vendor of goods, sold on a credit, elects to disaffirm the sale for the fraudulent misrepresentations of the vendee in obtaining the goods, if the vendor received a note or acceptance in payment of the goods, he must first return, or offer to return, such note or acceptance before he is in a position to bring a suit for the recovery of the goods; that until he has done so the rescission of the contract of sale is not complete, the vendor not having put the vendee in statu quo; and, hence, is not entitled to the possession of the goods, at the time of suit brought. Doane v. Lockwood, opinion not yet published. “ The title of the fraudulent purchaser,” says the court, “is voidable at the election of the vendor; that is, the vendorhnay at will rescind the sale by restoring, or offering to restore, what he has received, and when so rescinded the case stands as though no sale had been made; the original taking is then regarded as a tortious taking without the consent of the vendor, anl the title to the goods at once becomes reinvested in the vendor as though it had never been divested. Until that is done the title is not in the vendor, nor is the right of immediate possession.” * * “ It must be observed that the issue in such cases is, were the goods the property of the plaintiff when the action was begun. The sale not having been successfully rescinded until the notes were surrendered in court, after the goods were taken on the writ, the property, when the writ issued, was in Lockwood, and had not at that time been divested by a successful rescinding by Doane.”

This decision had not been promulgated when the present case was tried, and the learned judge was doubtless controlled by what he understood to be a different ruling in Ryan v. Brant, 42 Ill. 78.

The case of Doane v. Lockwood is decisive of the present suit, and by it we are bound. The plaintiffs not having returned nor offered to return the acceptance given for the goods, before the bringing of suit, were not entitled to their possession, and so had no right to bring replevin.

The judgment of the court below is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: Wilsoh, P. J.

text:
    George K. Shoenberger v. John McEwen.
    Imputed warranty.—Where one orders an article of a manufacturer and designates a particular kind of material, out of which the article is to • be made, in whole or in part, such material not being made by the manufacturer himself, if the manufacturer uses the designated material, the law will not imply a warranty as to its quality or fitness, unless it be shown that the manufacturer failed to use reasonable and ordinary care in selecting it.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed November 11, 1884.
    Mr. Frank J. Loesoh and Mr. R. Biddle Roberts, for appellant;
    as to implied warranty, cited Phelan v. Andrews, 52 Ill. 486; Hoe v. Sanborn, 21 N. Y. 552; Benjamin on Sales, 4th Am. Ed. 657; Beck v. Sheldon, 48 N. Y. 365; Dounce v. Doe, 64 N. Y. 411; Cunningham v. Hull, 4 Allen, 268.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Wilsoh, P. J.

This was assumpsit brought by appellant, Shoenberger, against appellee, McEwen, on a promissory note for $386.24 given by McEwen to appellant in part payment for two boilers made by appellant for appellee.

Appellant was a manufacturer of steam boilers and, in response to an invitation from appellee, sent to the latter a written proposal to make for him two tubular boilers for the sum of $1,750. The proposal contained full specifications as to the size, manner of construction and the material to be used; and among other things it was specified that the shells of the boilers were to be made of “ 5-10 in. C. IT. 27o. 1 iron,” by which was meant a particular brand of iron known in the market as charcoal hammered iron of a certain grade. Appellant’s bid was accepted by appellee, and the boilers were made and put in place in conformity with the specifications. After being used fora time, one of the boilers gave out by reason of an inherent defect in the iron of which the shell was constructed, caused by improper rolling at the furnace when made.

Upon the trial in the court below, appellee, under the plea of the general issue and notice of special matter by way of recoupment, offered proof of damages sustained by him by reason of the defect in the boiler; and under the instructions of the court, the jury deducted $222 from the amount o£ the note, and rendered a verdict in favor of appellant for the balance, $177.75.

Ho complaint was made as to the workmanship oras to the manner in which the boilers were constructed; nor was it claimed that appellant knew of any defect in the quality of the iron, nor that the defect was discoverable by any of the tests used by boiler manufacturers. The boilers were tested by hydrostatic pressure before leaving the works to 125 pounds to the square inch, as specified in the proposals. The iron of which the boilei’S were made was manufactured at a furnace in Pennsylvania, and purchased by appellant, who was not a manufacturer of iron, to be used in their construction. The only ground of complaint was that the iron was unsound and unfit for the purpose intended. The court ruled that appellant was liable for the damages caused by the defect in the iron, on the ground that he was a manufacturer of the boilers, and, as such, must be held to have impliedly warranted the soundness of all the material used by him in their construction.

The general rule of the common law is that upon an executed sale of specific chattels the seller is not liable for defects in the quality of the article in the absence of fraud or express warranty. Where the purchaser is not deceived by any fraudulent misrepi’esentations or concealment on the part of the seller, and the buyer demands no warranty, the law presumes that he exercises his own judgment, and the doctrine of caveat emptor applies. A principal exception to this rule is found in cases of executory contracts for the manufacture and sale of goods in futuro, where from the nature of the case no examination of the article is possible; or in cases where the contract is such as to show that the duty and responsibility of ascertaining and judging of the quality are thrown upon the seller, as where he undertakes to furnish an article for a particular specified purpose. In Story on Sales, Sec. 871, it is said: “Upon an executory contract to manufacture an article, or to furnish it for a particular use or purpose, a warranty will be implied that it is reasonably fit and proper for such purpose and use, so far as an article of such a kind can be.” To the same effect is 1 Parsons on Con., 586 (side): Benjamin on Sales, 645. And such warranty includes not only the workmanship, but also the quality and soundness of the material of which the thing is made, as well as all latent defects not known to the purchaser, whether known to the seller or not. 1 Par. on Con. 586; Benj. on Sales, 644, et seq. If, therefore, this were the case of an ordinary purchase of a chattel from the manufacturer, or if it had been an order on appellant to manufacture the boilers in question, without specifying the kind or quality of material to be used in their construction, but the order had been given in sole reliance on the judgment and skill of appellant as to the quality of the material, the law would have implied a warranty both as to the workmanship and the soundness of the iron actually used.

And this brings us to the inquiry as to how far appellant’s liability, as upon an implied warranty, is affected by the circumstance that the kind of iron of which the boilers were to be made was specified in appellant’s proposal. The proposal, having been accepted by appellee, became a contract between the parties, binding alike upon each in respect to all its terms and conditions. One of its provisions required appellant to make the shell of the boilers out of a designated brand of iron. The furnishing of C. H. Mo. 1 iron” became an indispensable condition of the contract. Appellant could no more dispense with the kind of iron designated without violating his contract, than he could change the size or dimensions of the boilers. It was shown upon the trial that there was a better quality of iron, known as charcoal hammered “flange” iron, but by the terms of the contract appellant could not use it if he desired to. He could perform his contract only by using the kind of iron agreed upon.

Independent of any adjudications on the subject it would seem most unreasonable to hold appellant liable as upon an implied warranty of the sufficiency of material designated by appellee himself, in the absence of proof showing that appellant knew, or by the use of ordinary diligence in selecting the particular plates used might have discovered, they were defective. The cases bearing upon the subject of implied warranties are not altogether harmonious, but we think both reason and justice, as well as the weight of authority, support the proposition that where one orders an article of a manufacturer and designates a particular kind of material, out of which the article is to be made in whole or in part, such material not being made by the manufacturer himself, if the manufacturer uses the designated material the law will not imply a warranty as to its quality or fitness unless it be shown that the manufacturer failed to use reasonable and ordinary care in selecting it. The rule is thus stated by Mr. Benjamin: “Where a known, defined and designated article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, defined and designated article be actually supplied there is no warranty that it shall answer the particular purpose intended by the buyer.” Benjamin on Sales, Sec. 657, citing Chanter v. Hopkins, 4 M. & W. 399; Olivant v. Bailey, 5 Q. B. 288, and numerous other English and American cases. See also on the subject generally, Albany Law Journal of October 11, 1884.

In Hoe v. Sanborn, 21 N. Y. 552, thé defendant purchased of the manufacturer a quantity of circular saws, one of which proved to be worthless by reason of a defect in the iron of which it was made. The seller warranted the saw's to be “ good saws and of good quality.” In a very interesting opinion by Mr. Justice Selden, in which he discusses the basis upon which implied warranties rest, arguing that they are based upon the knowledge of the seller either actual or imputable to him by law as to the quality of the thing sold, he states as the result of his investigations the rule to be this: “ The vendor is liable for any latent defect not disclosed to the purchaser arising from the manner in which the thing was manufactured; and if he knowingly uses improper materials he is liable for that also, but not for any latent defect in the material which he is not shown and can not be presumed to have known.”

This decision, it will be noticed, was in a case where the particular kind of material had not been designated by the person giving the order for the saws, and yet it was held that there was no implied warranty that the material of which the saws were made was free from latent defects, in the absence of proof that the vendor knew or might have known, by the exercise of reasonable care, of such defects; that such warranty extended only to an undertaking by the vendor that the saws were free from any defects resulting from their improper construction.

In the subsequent case of Dounce v. Dow et al., 64 N. Y. 411, the case of Hoe v. Sanborn is cited with approval. But a case entirely analogous in its facts to the present, is Cunningham v. Hall, 4 Allen, 268. which was a suit against a shipbuilder to recover damages for a breach of contract in building and completing a ship, which, when partially built, the plaintiff agreed to purchase. It was mutually admitted by the parties, that upon a true construction of the contract, which had been negotiated through the medium of a written correspondence, the defendant was on the one hand bound and on the other entitled to use pine plank in planking the ship, and that pine plank were used for that purpose. Upon the trial the plaintiff introduced evidence tending to show that the vessel began to leak immediately upon sailing, and that the leak continued to increase until her arrival at the port of destination, when they were found to be so defective as to require that they should be taken out and replaced by new. The defendant was allowed to introduce evidence tending to show that pine planks are subject to latent defects, called “heart shakes,” formed in pine trees during their growth, and that it is sometimes impossible to discover these defects by the exercise of reasonable care and skill in adopting and fastening such planks to the frame of a ship.

The court below instructed the jury that by the terms of the contract the materials to be used were to be reasonably fit and proper for such a ship, and that this meant that they should contain, no defects which could be discovered by the exercise of reasonable care and skill, but did not extend to natural defects in timber which are incident to its process of growth, and which can not be discovered by the exercise of such skill and care. This ruling was approved by the Supreme Court on appeal. In delivering the opinion of the court, Merrick, J., said: “ It is undoubtedly now a well settled rule that if an article be ordered of a manufacturer for an especial purpose or a particular use, and he agrees to furnish it, and nothing is said by the parties as to the material of, or the manner in which it shall be made, there is an implied warranty on his part that it shall be fit for that purpose * * *. But if an article or fabric, in the particular line of his profession, be ordered of a manufacturer for a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of material, but the selection of the particular articles to be used and the way and manner of using and adapting them to the fabric are left to the choice and judgment of the latter without any special stipulations relative thereto, he will not in that case be liable for any loss or damage which may result from the imperfection of, or natural defects in, that kind of material.

If the defendant, in his contract with the plaintiffs, had simply agreed that he would finish and complete the ship then on the stocks, and deliver it so finished to them at a stipulated price, there would have been an implied warranty on his part that it should be, both as to the workmanship and materials used in its construction, fit for the service for which it was sold. But the contract was, in fact, modified by a stipulation that it should be planked with pine plank.

“Under this modification, what would otherwise have created a general liability, the defendant was bound only to use reasonable care and skill in the selection and preparation of that kind of plank, and they could afterward only hold the defendant responsible for damages resulting from his failure to exercise reasonable skill and care in the selection of the plank which he used.” The court cites with approval Hoe v. Sanborn, supra, and other cases to which it is unneeessary'to here refer.

In Beck v. Sheldon, 48 N. Y. 365, it was held that where a manufacturer of goods which are known in the market, and the different qualities distinguished by numbers, contracts to sell and deliver goods from his factory of certain numbers, in a suit upon the contract it is not material whether the goods delivered are of equal or inferior quality to those of corresponding numbers manufactured at other factories, or whether or not they are merchantable. If they are the numbers contracted for as manufactured at the contractor’s factory the contract is fulfilled.

A leading English case on the subject of implied warranties is Jones v. Just, 3 Q. B. 197, referred to by Mr. Benjamin, iii which the court, upon an extended review of the authorities, classified the cases on the subject, and one class is where a defined article is ordered of a manufacturer, although it is stated to-be required for a designated purpose, if the thing ordered be furnished, there is no warranty that it shall answer the purpose intended by the buyer. See cases there cited. See also Kellogg Bridge Co. v. Hamilton, 110 U. S. R. 108, where is found at least an indirect recognition of the same principle.

Hmnerous other cases of like import to the foregoing might be referred to, but as they are cited in those cases it is unnecessary to refer to them here. Suffice it to say that in such examination as we have been able to make we have found no cases in conflict with those above cited.

In the present case the plaintiff used the brand of iron agreed upon, and tested the boilers by hydrostatic pressure to 125 pounds to the square inch, as stipulated in the contract. From an inherent defect in the iron caused by improper rolling when made, and which only developed by use, the boiler proved defective. The plaintiff* appears to have used all reasonable care and skill in selecting the iron, and was guilty of no fraud. Under this state of facts we are of opinion that the court below erred in holding and instructing the jury that the plaintiff was liable as upon an implied warranty.

The judgment must be reversed, and the cause remanded for a new trial.

Reversed and remanded.


author: McAllistek, J.

text:
    Adolph Loeb v. Mary E. Fleming.
    1. Subuogation.—In order to be entitled to subrogation or substitution by operation of law to the rights and interests of the senior mortgagee in lands, by redemption, the party redeeming must pay the entire amount of an incumbrance which is senio to his own estate.

      2. Conventional subrogation.—It is only when the right of subrogation is the result of an express agreement that a partial payment can be considered as effecting a pro tanto assignment.
    8. Payment op notes.—Where the evidence showed that the junior mortgagee began to take up the interest notes in pursuance of a determination to redeem the premises from the senior incumbrance, by paying the entire amount thereof, and she intended to do this in the exercise of a right of redemption, and not under any conventional arrangement with the senior mortgagee, and with that intention paid three interest notes, but neither paid nor offered to pay any more of the mortgage debt, and one of the notes was simply indorsed paid and surrendered to the maker, the mortgagor, and two of the notes were indorsed at the request of the maker, “Paid by and assigned to Mrs. Mary E. Fleming without recourse,” and the premises were sold by the trustee, tlie senior mortgagee being the purchaser, and subsequently passed into the hands of a bona fide purchaser. Held, that as between the senior and junior mortgagees, the transaction in the case of the two notes was, in law and fact, a payment and not a purchase of said notes, and the assignment part of the indorsement had reference to the preservation alone of the rights oí the junior mortgagee as between her and the maker.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed November 11, 1884.
    William C. Yeaton, having made, May 29, 1877, his promissory note for $3,000, payable to his own order in three years from date, together with six coupon notes for $150 each, payable in 6,12,18, 24, 30 and 36 months, with interest at the rate of ten per cent, per annum after maturity, executed a deed of trust covering twenty acres of land lying in Cook county, Ill., to the appellant, Loeb, as trustee; such deed containing the usual power to sell the premises on default ofpayment of any of said notes. Yeaton then borrowed $3,000 of James Bolton, the notes were indorsed to him and the deed was recorded June 14, 1877, in the proper office. In June, 1878, Yeaton obtained a loan of $500 of appellee, Mrs. Mary F. Fleming, for which he gave his note payable in three years, and to secure it gave a second trust deed of the same premises March 31, 1879. Mrs. Fleming, without any agreement with Bolton but in pursuance of advice given her by her friends, that to protect herself, she would have to pay off the indebtedness for which the first trust deed was given, furnished to Teuton the money, and he paid and sent to her the third of the series of coupons, which was indorsed by Bolton: “ Paid by Mary E. Fleming, one hundred and fifty dollars, Mar. 31, 379.” She in like manner, furnished the money and Teuton took up the fourth and fifth of said coupons which, at Teuton’s request, were respectively indorsed by Bolton: “ Paid by and assigned to Mrs. Mary E. Fleming, without recourse.”
    When the principal note became due, Teuton wrote to Bolton in behalf of Mrs. Fleming, asking whether the note could be extended if Mrs. Fleming would pay interest at the old rate. Bolton made no reply to Teuton, but wrote to his agent having charge of the matter, that Mrs. Fleming would probably pay '.ne loan in about three weeks. ¡Nothing more having been paid, the appellant, at the request of Bolton, gave the requisite notice, and September 10,1880, as such trustee, sold the premises, Bolton becoming the purchaser at $3,000, which was several hundred dollars less than the sum due him, and the trustee executed to him a deed, and the property has gone into the hands of bona fide purchasers.
    The appellee, Mary E. Fleming, filed her bill in equity against Bolton, Loeb, the trustee, and appellant and other persons, purchasers of the premises, claiming to be the actual assignee of said three coupon notes paid by her, and for a pro tambo subrogation. The case was heard upon pleadings and proofs, and the court below found by its decree that Mrs. Fleming was the equitable assignee of all of said three notes, and as such entitled to priority’ in the application of the proceeds of said sale; that Loeb, the trustee, had made a misapplication of the proceeds in selling and conveying the premises to Bolton, and rendered a decree against Loeb for the face of said notes with ten percent, per annum interest, being $673.87, but dismissing the bill as to Bolton and the other defendants for want of equity.
    Mr. Geokge F. Blanke, for appellant;
    that where a junior incumbrancer pays a part only of the mortgage debt he is not subrogated pro tanto to the right of the mortgagee, cited Swan v. Patterson, 7 Md. 164; Hollingsworth v. Floyd, 2 H. & G. 87; Dixon on Subrogation, 122, 123; Kyner v. Kyner, 6 Watts, 227; Bk. of Penn. v. Potius, 10 Watts, 152; Hardcastle v. Com. Bk., 1 Harrington, R. 374.
    When paid, the notes ceased to be the subject of an assignment. After payment they could not be transferred to the prejudice of the senior mortgagee: Chitty on Bills, *223; Story on Promissory Botes, § 180; Byles on Bills, *169; Beck v. Robley, 1 H. Black, 89.
    Mr. Gbaham II. IIaebis, for appellee;
    that appellee is entitled to subrogation fro tanto as to the notes assigned to her, cited Tyrrell v. Ward, 102 Ill. 39; Shinn v. Shinn, 91 Ill. 477; Caudle v. Murphy, 89 Ill. 355; Conwell v. McGowan, 81 Ill. 285; Brice’s Appeal, 95 Penn. 145.
    When the maker of negotiable paper, secured by mortgage, pays the same with money furnished by a tiiird person, the transaction is a purchase of the' paper and not a payment of the same, and he who furnishes the money is the equitable assignee of the paper: Dubois v. Stoner, 11 Bradwell, 403; Swope v. Leffingwell, 72 Mo. 348; Gidone v. Gidone, 70 Ind. 62; Goodbody v. Goodbody, 95 Ill. 456; Caudle v. Murphy, 89 Ill. 355.
   McAllistek, J.

The bill alleges an assignment, in fact, by Bolton to Mrs. Fleming, of the three interest notes in question, for a valuable consideration; but as respects the one of the three which, she paid first, the record is barren of evidence, and the decree does not profess to find any such assignment in fact; indeed, the decree does not find an actual assignment, or assignment in fact, of any of the three notes. It finds an equitable assignment only. Bor is there evidence in the record tending to show that before, at the time, or subsequently to the payment of the first of said notes, there was any arrangement, agreement or understanding, between the two parties, for the purchase by her of said note, ol* any part of said senior mortgage or trust deed. But the evidence is all one way, that she began to take up said interest notes, in pursuance of a determination on her part to redeem the premises from Bolton’s incumbrance, by paying the entire amount thereof; that she intended to do this in the exercise of a right of redemption, and not under any conventional arrangement with Bolton, the senior mortgagee; that acting with that intention, she paid the three interest notes, but neither paid, nor offered to pay, any more of the mortgage debt; that of these notes, the one first paid was simply indorsed paid, surrendered to Yeaton, the maker, and by him sent to Mrs. Fleming. The second and third potes, when paid, were respectively indorsed, at the request of Yeaton, “Paid by and assigned to Mrs. Mary E. Fleming without recourse,” and signed by Bolton by an agent.

Mow it is entirely clear that if Mrs. Fleming can be regarded as equitable assignee as respects the first note paid by her, it must be by mere operation of law, and upon principles of equity. And it is equally clear that the general rule as to the right of a junior mortgagee to be subrogated to the rights of the senior by redemption, can have no application to this case; for redemption is the payment of the entire mortgage debt, after forfeiture, by the terms of the mortgage contract; and here only a small part of such debt was paid. In order to be entitled to subrogation, or substitution, by operation of law, to the rights and interests of the senior mortgagee in lands by redemption, the party redeeming must pay the entire amount of an incumbrance which is senior to his own estate. Street v. Beal, 16 Iowa, 68; Johnson v. Harmon, 19 Id. 56; Knowles v. Rablin, 20 Id. 101; Sheldon on Subrogation, § 14; 1 Jones on Mort., § 871; 3 Pom. Eq. Jur., § 1211.

A junior mortgagee who claims to be an equitable assignee, or an assignee by operation of law, stands in the same posision in respect to a partial payment of the senior mortgage debt as a surety does in respect to a partial payment of the claim against his principal.

It is well settled that a surety can neither at law nor in equity call for an assignment- of the claim of the creditor against his principal, or be clothed, by the mere operation of law, and upon principles of equity, with the rights of an assignee of such claim, unless he has paid the entire debt of the creditor. A pro tanto assignment will not be allowed. Gannett v. Blodgett, 39 New Hamp. 150; Swan v. Patterson, 7 Md. 164; Commonwealth, etc., v. Ches. & Ohio Canal Co., 32 Id. 501; Magee v. Leggett, 48 Miss. 139; Vest v. Voss et al., 74 Ind. 565; Harlan v. Sweeny, 1 Lea (Tenn.), 682; 1 Lead. Cas. in Eq., 4th Am. Ed. 152; Sheldon on Sub., § 127; Brandt on Suretyship, § 266, and cases in notes.

The courts have sometimes recognized what has been„called a conventional subrogation, resulting from an express agreement with the creditor to the effect that the security held by him shall be assigned to the person paying, or kept on foot for his benefit. Sandford v. McLean, 3 Paige, 122; Receivers of the New Jersey, etc., Railway Co. v. Wortendyke, 27 N. J. Eq., 660. When the right of subrogation is the result of an express agreement, it is no objection that it extends only to a part of the mortgage or other security. Of that character is the case of Brice’s Appeal, 95 Penn. St. 145. That case was one of purely conventional subrogation, and it has no application to the present case. There is no evidence tending to establish any conventional arrangement between Bolton and Mrs. Fleming that the whole or any part of the mortgage of the former should be assigned to the latter, or kept on foot for her benefit.

There can be no presumption of any intention of the parties,- under the circumstances of the case, to have the payment by Mrs. Fleming of the three interest notes operate as an assignment of Bolton’s mortgage pro tanto. And we have shown by the authorities that such partial payment can not be considered as effecting a pro tanto assignment by operation of law and upon principles of equity'. Gannett v. Blodgett, supra.

There being, then, no right of conventional subrogation as the result of express contract, and the coupon note first paid by Mrs. Fleming having been simply canceled, it is entirely clear, upon the above authorities, that it was error in the court below to include the amount of that note in its decree. Then as to the other two notes paid by her and which were indorsed, “Paid by and assigned to Mrs. Mary E. Fleming without recourse,” we are of opinion that, in view of all the circumstances, we are not warranted in holding that such transaction amounted to a purchase of said notes by Mrs. Fleming, of Bolton, or to an actual assignment by the latter to the former, but should hold, that as between those parties it was in law and in fact a payment, and that the assignment part of the indorsement had reference to the preservation alone of her rights as between her and Yeaton, the person primarily liable, and her mortgagor as well as Bolton’s. We maybe mistaken in this view, bnt it commends itself to our reason and sense of justice, and we are inclined to so hold.

The decree of the court below will be reversed as to appellant, and the canse remanded lor further proceedings not inconsistent witli this opinion.

Decree reversed.


author: Bailey, J.

text:
    William Watson v. Union Iron and Steel Company.
    1. Instructions.—Where eleven instructions were given for the defendant, most of them stating accurately and tersely the rules of law applicable to the case upon the defendant’s theory as to the facts, and the court, after reading these instructions, read one prepared by himself, in which he commenced by saying that the plaintiff had asked no instructions and that such of those asked by the defendant as he had thought to be correct and had read to the .jury by no means covered the case which they had to decide, and that he thought he ought not to let the case go in this loose way. Held, that sujh introductory clause is obnoxious to grave criticism.
    2. Vendor and vendee—Fraud—Rescission of contract.—Where a part of the liypolhesis of an instruction submitted was of a fraud perpetrated upon the plaintiff, the vendee, by means of false and fraudulent representations as to the price paid for certain land by defendant, the vendor, and the action brought was assumpsit. Held, that no recovery can be had on the ground of fraud, at least in this form of action, until there has been a rescission of the contract.
    3. Agency.—The rule which governs in case of an actual agency, applies where there is a voluntary assumption of agency; whether the act of agency be by actual employment by the parties, or as a volunteer, can make no difference as to the responsibilities growing out of the relation.

      4. Instruction—Agency.—Where defendant was superintendent of plaintiff's works in Chicago, and had been sent by plaintiff to investigate cerlain iron mines in the Lake Superior region, and if, on investigation, he deemed it advisable, to secure for plaintiff certain interests therein, and it appeared from the evidence that he was neither directed nor authorized to purchase for plaintiff the lands in question, but that such purchase was outside of the actual purview of his agency, and the question of fact, to be determined by the jury, was whether defendant, at the time he made the purchase of the lands, undertook to act as the plaintiff's agent, and the evidence as to this issue was conflicting. Held, that the instruction given by the court in this instance was erroneous, in that it required the jury to find, not the fact in issue, but only certain evidence tending to establish that fact.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed November 11, 1884.
    This was an action of assumpsit brought by the Union Iron and Steel Company, a corporation located and having its principal place of business in Chicago, against William Watson, for money had and received. At the time of the transactions in question the plaintiff was engaged in manufacturing iron and steel from ore obtained in part from mines in the Lake Superior region. It then, as it appears, owned no mines, but had to some extent obtained leases of mines already in •operation and taken its ore therefrom. The defendant at that time was in the employ of the plaintiff as superintendent of its works in Chicago, at a salary of $5,000 per annum, and as such superintendent had charge of its manufacturing business, hired and discharged its employes,, and was occasionally dispatched to the mining regions to examine and report upon mines which the company contemplated securing, and, if he deemed advisable, to obtain on behalf of the company leases therefor.
    The defendant appears to have visited the Lake Superior mines once or twice on such errand in the early part of 1881, and in March of that year he went again under instructions from the president of the company to investigate as to the value of a certain mine, and also to secure for the company a particular mine for which it then had an option, if he found it a good property and was of opinion that the company ought to have it. Instructions to that effect were given him in writing by the president, and the evidence is conflicting as to whether he was not also orally instructed by the president before going, as to the same matter. There is no evidence that he was directed to investigate for the company any property other than said mines, or to purchase for it any lands not connected therewith.
    While in the mining region, the defendant met Jacob F. Schafer and Joseph A. Ames, who were then engaged in exploring government lands in that region, and. making out a particular description of each tract, the kinds, quality and amount of timber, and what indications of mineral, if any, were to be seen thereon. These descriptions they proposed to sell to the defendant at the rate of seventy-five cents per acre, payable in case on investigation they turned out to be accurate, and the defendant succeeded in entering and purchasing from the government the lands therein described. This proposition was accepted by the defendant, and in pursuance of it he entered in his own name in April or May, about 1,881 acres, and in July following about 3,908 acres, paying Schafer and Ames $.75 per acre for the information contained in said descriptions, and paying $1.25 per acre to the government, making in all $2 per acre. These lands were mainly timber lands, and only two or three forty-acre tracts showed any indications of mineral.
    After making the earlier of these entries, the defendant informed the president of the company of his purchase, and proposed that the company take the lands off his hands. As to what transpired in relation to this matter, the evidence is conflicting. The plaintiff’s evidence tends to show that the defendant gave as a reason why he had purchased the lands in his own name, that he had not time to correspond with the president of the company, but was obliged to take them at once or not at all, and offered to let the company have them, if it wanted them, at what they had cost him, saying at the same time that they had cost him $5.10 per acre; that the president having implicit confidence in him, and relying upon liis statement as to their cost, agreed to take the lands from him for the company at that price; that the defendant thereupon assigned to the company the certificates of entry, and subsequently received credit therefor on the books of the company at $5.10 per acre; that several months afterward the defendant delivered to the company’s secretary, in the absence of the president, the certificates of the land subsequently entered, and represented to him that they were the residue of the certificates included in the former transaction, and that the secretary thereupon received the same from him and gave him credit therefor at the rate of $5 per acre. It further appears that the company did not ascertain the truth in relation to the cost of the lands until after the defendant’s account had been settled up and he had been discharged from its service.
    The defendant’s evidence tends to show that the defendant purchased said lands in his own name and for his own benefit; that some time after making the first purchase, he mentioned the matter to the company’s president, and that a negotiation between them for the purchase of the lands for the company ensued, which resulted in their sale to the company for $5.10 per acre; that after he had entered the residue of the lands he again met the president and informed him of that purchase also, and that the latter offered to purchase said lands and asked the defendant his price; that after some negotiation, $5 per acre was agreed upon, and the sale made to the company at that price.
    The plaintiff seeks to recover the difference between the price paid to the defendant for the lands and what they cost him. A large number of instructions to the juiy were asked on behalf of the defendant, eleven of which were given. No instructions were asked on behalf of the plaintiff, but the court, on his own motion, instructed the jury as follows:
    “ .Gentlemen of the jury: The plaintiffs have asked no instructions, and of those asked by the defendant, what I have thought to be correct and have read to you by no means cover the case which yon have to decide. I do not think I ought to let the case go in that loose way. The theory of the administration of the law is, that there are rules and principles by which the rights of parties litigant are governed with which a judge is better acquainted than a jury, and that he should tell them, after the evidence and arguments have been heard, what those rules and principles are; and, therefore, I have written and now read to you as follows:
    “If the defendant represented to the president of the plaintiffs that the lands which he had bought were such as he, at the time that he bought the same, thought it was for the interest of the plaintiffs to buy, and that he would have procured for the plaintiffs an option to buy the same and reported the same to the plaintiffs for their approval but for the fact that he had to act quickly or he could not get the lands, and therefore he had bought them in his own name, but for the account of the plaintiffs, if they chose to take them from him at what they cost him, and represented also that they cost him $5.10 per acre, when in fact they had cost him much less; and if relying upon and believing such representations, the president of the plaintiffs directed the purchase of the lands from the defendant at the price he said they cost him, and the plaintiffs did buy them from the defendant and pay him $5.10' per acre for the lauds so bought by the defendant; and if at the time the defendant bought the lands, and at the time he sold them to the plaintiffs, the defendant was the superintendent of the works of the plaintiffs, and had been sent to the vicinity of the lands by the plaintiffs for the purpose of examining iron ore mines, in order that the plaintiffs might buy them, and with authority to negotiate for such mines for the plaintiffs; and if the position which the defendant occupied in the service of the plaintiffs in any material degree contributed to induce the president of the plaintiffs to rely upon his representations and buy the lands of the defendant, then the plaintiff may now recover the difference between the sum the lands cost the defendant and the sum the plaintiffs paid him therefor.
    “ So far this instruction relates only to the first lot of lands. “ As to the second lot, if the defendant induced the plaintiff to pay him for the same, at the rate of $5 per acre, upon the representation that the second lot of lands were included in the arrangement which the defendant had made with the ¡iresiden t of the plaintiffs, and that the cost of the second lot was $5 per acre, and if the plaintiffs are entitled to recover as to the first lot upon the principles stated m the part of this instruction relating to the first lot, and if there had in fact been no negotiations between the president of the plaintiffs and the defendant as to the second lot, then the plaintiffs may now recover the difference between the sum the second lot of lands cost the defendant, and the sum the plaintiffs paid him therefor.
    “But, unless the jury find from the evidence that the first lot of lands was disposed of by the defendant to the plaintiffs in the manner recited in this instruction, the plaintiff can not recover.
    “ It is not necessary that any representations of the defendant, upon which the plaintiffs may claim to recover, should have been made in any particular form of words.
    “ If the defendant used any form of words calculated to induce the president of the plaintiffs to believe that a certain state of facts was true, and which fairly meant that it was true, if the president did therefrom so believe, that constitutes a representation that such state of facts did exist.
    “ What did take place and what are the real facts of the case the jury are to find solely from the evidence. They are not to regard an instruction as containing any hint or intimation as to what are the facts, or what the verdict of the jury should be, but the burden is on the plain tiffs to prove their case by a preponderance of all the evidence in the case, or the verdict should be for the defendant.”
    The jury thereupon found the issues for the plaintiff, and assessed the plaintiff’s damages at $19,668.25, for which sum and costs the plaintiff had judgment.
    Messrs. Swett, Haskell & Gbosscup, for plaintiff in error;
    that the instruction given by the court was erroneous, cited 3 Wait’s Actions and Defenses, 463; Ely v. Hanford, 65 Ill. 265; Ætna Life Ins. Co. v. Church, 21 O. St. 492.

      Messrs. Stiles & Lewis, for defendant in error; as to agency, cited Cottom v. Holliday, 59 Ill. 179; Gromley v. Webb, 44 Mo. 444; Dutton v. Willner, 52 N. Y. 312; Davis v. Hamlin, 108 Ill. 39; Switzer v. Skiles, 3 Gilm. 529; Mason v. Bauman, 62 Ill. 76; Tewksbury v. Spruance, 75 Ill. 187; Kerfoot v. Hyman, 52 Ill. 512; Dennis v. McCagg, 32 Ill. 429; Bain v. Brown, 56 N. Y. 285; Wolford v. Harrington, 74 Pa. 311; Buntar v. Miles, 30 Me. 431; Cullen v. Denmon, 111 Mass. 474; Taylor v. Salmon, 4 M. & C. 136.
    A sale of property at cost is a valid contract, and if the vendor, by misrepresentation, obtains more than cost, he will be liable to the vendee for the excess, in an action for money had and received: Pickman v. Trinity Church, 123 Mass. 1; Devine v. Edwards, 87 Ill. 177; Stempel v. Thomas, 88 Ill. 146; Walker v. Coleman, 81 Ill. 390.
   Bailey, J.

The instruction given to the jury by the court, on his own motion, is, in our opinion, so far erroneous as to necessitate a reversal of the judgment.

The introductory clause of the instruction is obnoxious to grave criticism in that it tends to discredit the instructions given at the instance of the defendant. Eleven instructions were given for the defendant, stating in plain and terse language, and in most of them correctly, the rules of law applicable to the case upon the defendant’s theory as to the facts. Having read these instructions, the court proceeded to read an instruction prepared by himself, in which he commenced by saying that the plaintiff had asked no instructions, and that such of those asked by the defendant as he had thought to be correct, and had read to the jury, by no means covered the case which they had to decide, and that he thought he ought not to let the case go in that loose way. The jury may well have understood this language as meaning that the instructions given for the defendant, though correct, constituted a loose and wholly inadequate presentation of the rules of law applicable to the case. It is scarcely to be supposed that the jury would give to these instructions the consideration to which they were properly entitled after their substantial impeachment by another instruction emanating from the court.

But there are other features of the instruction which require a more careful and elaborate consideration. The leading paragraph of the instruction, briefly stated, yet preserving every essential feature, holds, that if the defendant represented to the plaintiff’s president that he bought the lands in question on the plaintiff’s account, if it chose to take them at what they cost him, and explained to him how he happened to take the title in his own name, and also represented that they cost him $5.10, when in fact they cost him much less; and if said president, relying upon such representations, directed the purchase of said lands at that price, and the plaintiff purchased said lands of the defendant, and paid him So.10 per acre therefor; and if at the time the defendant bought the lands, and at the time he sold them to the plaintiff, he was the plaintiff’s superintendent, and had been sent by the plaintiff to the vicinity of said lands to examine and negotiate for iron ore mines; and if his position in the service of the plaintiff in any material degree contributed to induce said president to rely upon his representations and buy said lands of him, then the plaintiff" may recover the difference between what the lands cost the defendant and what it paid him therefor.

It is not easy to determine the precise legal principle intended to be laid down in this instruction as the basis of a recovery. A part of the hypothesis submitted is that of a fraud perpetrated upon the plaintiff by means of false and fraudulent representations as to the price paid for the lands, yet it is manifest that no recovery can be had on the ground of fraud, at least in this form of action, until there has been a rescission of the contract.

Again it is urged that the plaintiff’s right to a recovery may be based upon another principle, namely, that as the evidence tends to show that the agreement on the part of the defendant was to sell the lands to the plaintiff at what they cost him, the real price agreed upon was-the cost, viz., $2 per acre, and all paid in excess of that may be recovered back as money paid by mistake. Whether that rule is, under the evidence, applicable to this case or not, it is very clear that it is not the rule sought to be invoked by the instruction. There is no attempt to submit the hypothesis of an agreement of the terms here supposed, but merely the hypothesis of a representation as to the cost of the lands, which, though preceding and forming an inducement to the contract, was no part of the contract itself. The agreement supposed in the instruction is an agreement to pay $5.10 per acre, and not $2 per acre.

But if we comprehend the instruction correctly, it seems to have been the design of the court to submit to the jury the question whether or not there existed between the plaintiff and defendant, at the time of the purchase of said lands by the defendant, such relations as would make the purchase inure to the benefit of the plaintiff. It is not disputed that the defendant at that time was the superintendent of the plaintiff’s works in Chicago, and that he had been sent by the plaintiff to investigate certain iron mines in the Lake Superior region, and if on investigation he deemed it advisable, to secure for the plaintiff certain interests therein. It also appeared from the evidence, with scarcely a shadow of controversy, that he was neither directed nor authorized by the plaintiff to purchase for it the lands in question, but that such purchase was outside of the actual purview of his agency. Had he been in fact the plaintiff’s agent to make the purchase, nothing is clearer or better settled than the rule which would have precluded him from making the purchase for his own benefit. Dennis v. McCagg, 32 Ill. 429; Reigard v. McNeil, 38 Id. 400; Davis v. Hamlin, 108 Id. 38. Even the purchase with his own money would not in that case have exempted him from the operation of the rule, as he would then have held the title merely as security for the money thus advanced.

But the rule goes further. It is not essential that the purchase should have actually been within the purview of the defendant’s authority as agent, if, at the time it was made, he assumed to act for the plaintiff and purchased for its benefit: In Dennis v. McCagg, supra, it was held, that the rule which governs in case of an actual agency applies where there is a voluntary assumption of agency; and that whether the act of agency be by actual employment by the parties or as a volunteer, can make no difference as to the responsibilities growing out of the relation. The same principle is recognized in Casey v. Casey, 14 Ill. 112, and Reigard v. McNeil, supra.

The case of Ely v. Hanford, 65 Ill. 267, to which we are referred, in no way conflicts with the rule above laid down, but on the contrary seems to expressly recognize it. There Ely entered into a contract with Metz, the owner of a certain lot in Hyde Park, for the purchase of said lot for the benefit of himself and another for $2,500. Some days afterward, Ely represented to Hanford that the lot was owned by another and that he would act as Hanford’s agent in purchasing it for him, and was employed by Hanford as his agent for that purpose. Ely thereupon obtained a conveyance of the lotto Han-ford for $4,050. It was not pretended that Ely either was or assumed to be Hanford’s agent at the time he entered into the contract with Metz. In a suit by Hanford to recover the difference between the price paid by him and what the lot cost Ely, it was held, that while Ely’s misrepresentation as to the ownership of the lot was such a fraud as would have enabled Hanford to rescind the contract in. toto, yet, as Ely was not his agent at the time of the purchase from Metz, he could not recover from. Ely the difference between what he had paid him and what the lot cost Ely. In the opinion the court say: “This action, as we conceive, is sustainable only upon the ground that the relation of principal and agent existed betweed Hanford and Ely, at the time the latter contracted with Metz for the lot. If before and at that time Ely had undertaken to act as the agent of Hanford to make the purchase for the latter, he would be liable in this action to refund to Hanford the difference between what Hanford paid him and what he paid Metz for the lot; for being Han-ford’s agent, this purchase from Metz would be Hanford’s purchase and Hanford would therefore be entitled to the full benefit of the contract.”

In the present ease, the question of fact to be determined by the jury, so far as this theory of the case is concerned, then, was whether the defendant, at the time he made the purchase of said lands, undertooh to act as the plaintiff’s agent, or in other words, assumed to make the purchase on the plaintiff’s account or for its benefit. As to this issue the evidence was conflicting. The defendant’s evidence tended to show that the purchase was made by him in his own name and for his own benefit and without reference to the plaintiff. On the oclier hand, the plaintiff gave evidence of certain admissions and representations made by the defendant, not at the time of the purchase, but afterward and during the negotiations which resulted in the sale of the lands to the plaintiff. These admissions and representations undoubtedly were competent evidence tending to prove the character in which the defendant made the purchase, but they were only evidence. Had they been made at the time of the purchase and as a part of the res gestee, they perhaps would have been conclusive, as the defendant would then, under the rule recognized in Heigard v. McNeil, have been estopped from denying 1ns agency. But being made afterward, the doctrine of estoppel does not apply.

The instruction required the jury to find, not the fact in issue, viz., that the defendant at the time he purchased the lands assumed to purchase them as the plaintiff’s agent, but only certain evidence tending to establish that fact, such evidence being only a portion of the evidence bearing upon that issue. This was clearly erroneous, as such evidential facts, even if found to exist, were not conclusive, and might or might not, in the light of all the evidence in the case, have convinced the jury of the existence of the fact which it was their duty to find.

For the error in giving the instruction, the judgment will be reversed and the cause remanded.

Judgment reversed.