text:
    George H. Brewster v. Eugene Riley et al.
    1. Attachment — Judgment by confession. — Where creditors A and B on March 21st sued out writs of attachment against appellee’s estate, returnable to the April term, and caused them to he levied upon his goods, and at the April term recovered judgments, and special executions were awarded, and March 23d, a judgment by confession without summons or ccqiias was entered against appellee, upon his judgment note of that date in favor of his wife, and execution upon it was levied upon the goods, and March 26th creditor 0 began an action of assumpsit against appellee, attachment in aid was sued out returnable to April term, and at such term judgment recovered, etc., held, that the plaintiff in the. judgment by confession was not entitled to share pro rata with the attachment creditors A, B and C, in the proceeds of the property attached and sold.

      2. Distribution of attached property — Bona pides of judgment. — The court, upon the hearing o£ the matter of the distribution of the proceeds of property attached, has jurisdiction to enter into the investigation offered as to the bonafides of a judgment by confession where it is material to do so.
    Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 9, 1886.
    Tolman sued out of the superior court, March 21, 1885, a writ of attachment against the estate of Eugene Riley, returnable to the April term, 1885, of said court, and caused it to be levied upon the goods of Riley on said March 21st. At the said April term Tolman recovered judgment in the suit for §565, and special execution was awarded. On said 21st of March Brewster sued out of the same court an attachment against said Riley, returnable to said April term, which he caused to be levied on the same goods of Riley on said 21st of March, but subsequent to the levy of Tolman’s writ. At said April term, Brewster had judgment in his suit for §362.70, and special execution was awarded.
    At the March term, 1885, of said court, and March 23, 1885, a judgment by confession, without summons or capias, was entered against said Riley, upon his judgment note of that date, in favor of Rose Riley, for §1,940, and an execution upon it was levied upon said goods March 23, 1885, subsequently to the levy of both said attachments. March 26, 1885, Barm began an action of assumpsit against said Riley, in said superior court, and on the same day sued out, and caused to be levied on the same goods, an attachment in aid returnable to said April term; at which term said Barm recovered in said suit a judgment against said Riley for $704.75, on which a special execution was awarded.
    The property so levied upon, consisting of a stock of dry goods, was sold by the sheriff under the execution in favor of Tolman, and realized, above all costs 'and expenses, the sum of §1,293.90, which was paid into court.
    Upon a motion on behalf of said Brewster, at the February term, 1886, of said couit, all the parties in interest being present, the above facts being stipulated, the court was asked to make distribution of the said money among the several judgment creditors pursuant to law. Upon the hearing of that motion said Barm offered to prove that the said judgment in favor of said Bose Biley was not based upon a hon.o fide claim, and that the same was fraudulent. But the court refused to hear evidence upon that question. To which ruling said Barm and said Brewster duly excepted. The court adjudged and ordered that said sum of §1,293.90 be distributed among the said Tolman, Brewster, Bose Biley and Barm, pro rata, in proportion to the amounts of their said respective judgments against said Eugene Biley. To which order the said Tolman, Brewster and Barm duly excepted, and bring the case here for revision.
    Messrs. H. S. & F. S. Osborne, for appellant;
    cited Bucker v. Fuller, 11 Ill. 223; Pollock v. Slack, 92 Ill. 221.
    Mr. R. W. Clifford, for appellee;
    that the Attachment Act should be liberally construed, cited Hannibal & St. J. R. R. Co. v. Crane, 102 Ill. 249.
   McAllister, J.

The first question is whether the ruling of the court was correct in excluding the offer on the part of Barm to prove that the judgment in favor of Bose Biley, entered upon confession, was not based upon a Iona fide claim, but was fraudulent. Section 39 of the Attachment Act says: “ The court may, at any time before the proceeds of any attached property have been paid over to the judgment creditors, order the whole, or any part thereof, to be paid into court, and may malte any and all such, orders concerning the same as it shall deem just.”

Section 41 declares: “This act shall be construed in all courts in the most liberal manner for the detection of fraud.”

Manifestly that judgment by confession was open to attack on the part of Barm on the ground that it was not based upon a Iona fide indebtedness, and was fraudulent as to ereditors of Riley. We are of opinion that the court, upon the hearing of the matter of the distribution of the proceeds of the property attached, had jurisdiction to enter into the investigation offered as to the Iona fides of the judgment by confession where it is material to do so, but that, from the view we take of this case, such an inquiry was 'wholly immaterial.

The other question is as to the propriety of the order of the court that the plaintiff in the judgment b}r confession was entitled to share pro rata with the attachment creditors in the proceeds of the property attached and sold.

Those attachment creditors all had their respective writs of attachment sued out in March, in time for and returnable to the April term of, the superior court, 1885, at which term judgment in their respective suits was obtained, and special execution awarded. The attachment in favor of-Tolman and that in favor of Brewster were each sued out and levied March 21, 1885. The judgment by confession in the same court was not entered until March 23, 1885, and the execution issued upon it and levied on that day created a lien subsequent to that of both the above mentioned attachments ; so that, by the general rule, the attachment creditors being prior in time were prior in right of lien. . To escape that result the plaintiff in the judgment by confession invokes the provisions of § 37 of the Attachment Act as follows: “ All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shah be recovered is rendered, shall share pro rata, according tc vthe amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.” 1 Starr & Cur. Stat., p. 325.

The judgment in favor of Rose Riley was neither in fact nor legal effect a judgment in a suit by summons, capias or attachment against Eugene Riley, but a judgment by confession, by means of a warrant of attorney executed by said Eugene Riley. Rot was it entered at the same term as that at which all the judgments in the attachment suits, or any of them, were entered.

We are therefore of opinion that the judgment hy confession in favor of Rose Riley did not come within the letter or spirit and intent of said statute, and that the court below erred in directing that she share to rata with said attachment reditors in said proceeds.

Under the section above quoted, said proceeds should have been distributed among the three attachment creditors, Tolman, Brewster and Barm, 'pro rata, according to the amount of their respective judgments.

The order of the court below will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Order reversed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Jacob Johnson v. Joseph O. Glover.
    1. Affidavit fob continuance. — An affidavit for a continuance, which fails to show diligence in attempting to obtain the desired testimony, is insufficient.
    2. Practice — Amendments.—Where the declaration has been materially amended, the defendant has the right to file additional pleas, and a refusal to permit him to file appropriate pleas would be error. The court inclines to the opinion, however, that this rule does not apply until the amendment is actually placed on file; that mere leave to amend does not constitute an amendment.
    3. Bill of exceptions — Presumptions.—Whenever a party has so framed his bill of exceptions as to leave room for presumptions, such presumptions must be indulged in as will support the judgment of the court below.
    4. Evidence — Guaranty—Pleading.—Where, in an action of assumpsit on a guaranty of a promissory note, objection was made to the introduction of the note on the ground of variance, it being described in the special counts of the declaration as payable generally instead of at the particular place, held, that the note and contract of guaranty were admissible under the common counts of the declaration.

      Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 9, 1886.
    Mr. Henry W. Magee, for appellant.
    Messrs. Jameson, Marston & Augur, for appellee.
   Bailey, P. J.

This was an action of assumpsit, brought by Joseph 0. Glover against Jacob Johnson, upon a guaranty of a promissory note. Said note is as follows:

“§1,500. Chicago, March 6, 1883.
“ Minety days after date, I promise to pay to the order of Jacob Johnson fifteen hundred dollars, payable at 226 South Water street, value received.
“ Helson & Bullen.”

On the back of said note the name of Jacob Johnson, the payee, appears indorsed twice, and over the second signature is written the following guaranty: “Eor value received I hereby guarantee payment of the within note.” The declaration consists of two special counts on the guaranty and the common money counts, and the defendant’s plea is non assumpsit. The trial, which was had before the court and a jury, resulted in a verdict in favor of the plaintiff for §1,784.93. From this sum the plaintiff remitted §74.93 and judgment was thereupon entered in his favor for §1,710 and costs.

The defendant has assigned for error the refusal of the court to grant his motion for a continuance. The trial was had at the October term, 1885, of the superior court, and it appears that after the jury had been impaneled and sworn, the defendant moved for a continuance, on the ground of the absence of W. H. Bullen, one of the makers of the note, and in support of said motion offered to read llis own affidavit made and filed on a motion for a continuance on account of the absence of the same witness at the September term, 1884. Ho other proof was made or offered either as to the materiality of the witness or as to the defendant’s diligence in procuring his testimony. It is clear that there was no error in denying the motion. An affidavit for a continuance, which fails to show diligence in attempting to obtain the desired testimony, is insufficient. Meyers v. Andrews, 87 Ill. 433; Richard Iron Works v. Glennon, 71 Id. 11. The affidavit which the defendant offered to read was made more than thirteen months prior to the trial, and had no application to the facts as they existed at the time the motion was made. Hot a syllable of proof was offered to show that the defendant had made the least effort, during all that period, to procure the attendance of said witness, or that it was impossible to procure his testimony at the trial, or that the witness was absent. So far as appears, by competent proof, he may have been sitting in the court room at the very moment the motion was being made. Counsel seems to have accompanied his motion with a suggestion that a subpoena had been issued for the witness, and that he could not be found. Ho proof of such suggestion, however, was offered. Ho subpoena seems to have been produced, and no evidence was offered that the slightest effort had been made to have the witness subpoenaed. It is manifest that upon such showing the court could not do otherwise than refuse a continuance.

Subsequently, during the trial, the defendant renewed his motion for a continuance, and asked for time to prepare an affidavit, showing that he was xmprepared to proceed with the trial, but the court declined to grant such application or continue the cause. There was no suggestion of any new ground for the motion, and it was cleai-ly a matter of discretion, with which we have no power to interfere, whether the defendant should be permitted to renew an application for a continuance already disposed of, and whether, during the progress of the trial, the proceedings should be interrupted for the purpose of giving counsel an opportunity to prepare proper affidavits to support his motion.

Objection having been made to the introduction in evidence of the note in question on the ground of variance, it being described in the special counts of the declai’ation as payable generally, instead of at a particular place, the plaintiff asked and obtained leave to amend his declaration, by inserting therein atrae description of the note, but it does not appear that such amendment was ever actually made. Upon such leave being given, counsel for the defendant asked leave to file instanter two special pleas of failure of consideration to the amended declaration, which the court refused to give, and such refusal is assigned for error.

It seems to be the rule that where the declaration has been materially amended the defendant has a right to file additional pleas, and that a refusal to permit him to file appropriate pleas would be error. McCarthy v. Nen, 91 Ill. 139; Griswold v. Shaw, 79 Id. 449; Nelson v. Akeson, 1 Bradwell, 165. But we are inclined to the opinion that the declaration can not be regarded as having been amended, within the meaning of this rule, until the amendment is actually placed on file, and that mere leave to amend does not constitute an amendment.

But without attempting to decide that question, it is sufficient to say, that the defendant has not preserved his proposed pleas in his bill of exceptions, and we therefore have no means of knowing whether they were so drawn as to present defenses to the action or not. Whenever a party has so framed his bill of exception's as to leave room for presumptions, such presumptions must be indulged in as will support the judgment of the court below. We may therefore sustain the action of the court in refusing to allow said pleas to be filed, upon the presumption that they were insufficient in form, or substance, or both.

It is insisted that the court erred in admitting the note in evidence because, first, as the declaration had not been actually amended there was still a variance between the note and declaration; and, secondly, because of a variance between the. note and the copy thereof filed with the declaration. To the first point it may be answered that as the declaration contained the common counts the note and contract of guaranty were, as we think, admissible under those counts. A contract of guaranty is not a collateral but an original undertaking. Gridley v. Capen, 72 Ill. 11; Rich v. Hathaway, 18 Id. 548, As held, in Gage v. Mechanics National Bank, 79 Ill. 62, where the guaranty was precisely like the one in the present case, the contract entered into by the guarantor is an absolute undertaking to pay the note at maturity. It would thus seem to be clearly within the rule that where a claim is merely of a pecuniary nature, and is founded upon a past or completed or executed consideration, it is sufficient to declare upon the indebitatus assumpsit counts. 1 Chitty’s Plead., 295. Or ar; the rule is more frequently stated, when the terms of a special contract have been so far performed that nothing remains but a mere debt or duty to pay money, then the amount due may he recovered under a general count. 1 Chitty’s Plead., 350, note f. It would thus seem that the misdescription of the note in the special counts of the declaration was immaterial. As to the second point, there seems to be no variance between the note and contract of guaranty, and the copy of the contract sued on tiled with the declaration. The variance alleged is the omiss'on in the copy of a certain indorsement appearing on the note, placed there by a former holder, by way of an assignment, for collection, and subsequently erased. It is very clear that such indorsement is no part of the contract sued on, and is therefore no part of the copy required by the statute to be filed with the declaration. -

The defendant’s plea of non-assumpsit was not verified by affidavit, nor did he file his affidavit denying the execution of the instrument sued on, as provided by the thirty-third section of the Practice Act, and he therefore was not at liberty to deny at the trial the execution of the guaranty in question. Martin v. Culver, 87 Ill. 49. As against him its execution must therefore be regarded as being conclusively established. The court, however, allowed the plaintiff to give evidence tending to show that the defendant put his signature on the back of the note with the intention of guaranteeing it, and the admission of such evidence is assigned for error. We are inclined to the opinion that the evidence was improperly admitted, as there was no issue to which it was responsive. The only purpose of its admission was to prove that which was already admitted by the pleadings, viz., the execution of the guaranty. But we are unable to see how the defendant was at all prejudiced by its admission. It only tended to prove a fact which the defendant had not denied and was not at liberty to deny; and it could therefore have had no influence one way or the other in the determination of the issues which were submitted to the jury.

A considerable effort was made by the defendant at the trial to show that the plaintiff purchased the note after maturity, but the preponderance of the evidence seems to show very clearly that he purchased and obtained possession of it a short time prior to the expiration of the days of grace, and also that he obtained it from a l)onafide assignee to whom it was negotiated long before maturity. But the question whether the plaintiff was an assignee before or after maturity becomes unimportant, for the reason that the defendant failed to establish any defense to the note or guaranty. The defense sought to be proved was payment at maturity by or on account of the makers. As to that matter the preponderance of the evidence was manifestly against the defendant, and would not, in our opinion, have sustained a verdict in his favor.

After the verdict the defendant applied for a new trial, basing his application, among other things, upon the ground of newly discovered evidence. Said evidence, as disclosed by his affidavits filed in support of his motion, is mainly if not entirely cumulative, and is by no means conclusive. In addition to this, the reasons disclosed for not having discovered said evidence in time to have produced it at the trial are entirely insufficient to exculpate the defendant from the charge of negligence. We think the motion for a new trial was properly denied.

Some other propositions are discussed by the counsel for the defendant which we do not deem it necessary to notice, beyond saying that, in our opinion, they are without merit. We find no material error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    Chicago & Eastern Illinois R. R. Co. v. Jeremiah O’Connor, Jr., Adm’r.
    Survival of action. — In an action on the case, for a personal injury, where the party dies before obtaining judgment, but the death is not the result of the injury, the action survives to the personal representatives, under the provisions of section 123 of the statute in relation to the administration of estates.
    Appeal from the Superior Court of Cook county ; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed June 9, 1886.
    Mr. Wm. Armstrong, for appellant.
    Messrs. Hynes, English & Dunne, for appellee.
   Bailey, P. J.

This was an action on the case, brought by Jeremiah O’Connor against the Chicago & Eastern Illinois Eailroad Company, to recover damages for a personal injury. The defendant appeared and pleaded not guilty, and a trial of the issue thus formed having resulted in a verdict and judgment for the plaintiff, an appeal was taken by the defendant to this court, where said judgment was reversed and the cause remanded for a new trial. C. & E. I. R. R. Co. v. O’Connor, 13 Bradwell, 62. Shortly after the decision of said appeal Jeremiah O’Connor died, and his administrator, Jeremiah O’Connor, Jr., was substituted as plaintiff. The defendant thereupon filed a plea alleging the death.of the original plaintiff, and also alleging that his death was in no way caused by the injuries alleged in the declaration, and praying judgment for the defendant. To this plea a demurrer was sustained, and it also appears that on motion of the plaintiff said plea was stricken from the files. Which of these orders, the one sustaining the demurrer or the one striking the plea from the files, was entered first, the record fails to show.

As the contrary does not appear, it may be presumed that the order sustaining the demurrer was the one first entered ; and if so, the defendant was in no way prejudiced by a subsequent order striking the plea from the files. But we can not see that the case would have been materially different if it had appeared that' the latter order was the first one entered. Both seem to have been entered upon the same ground, viz., that the plea presented no defense to the action, and if the plaintiff’s counsel, as well as the court, ignoring or waiving the fact that the plea had been already disposed of on motion, saw fit to accord to the defendant the right of having its sufficiency tested by demurrer, the defendant can not -complain of the former order, of which the plaintiff sought to take no advantage.

The theory of the plea is, that by the death of the plaintiff, the cause of action became extinguished, and that the action itself should therefore be abated. Such plainly would have been the case at common law, under the rule that actio personalis moritur cum, persona; but section 123 of the statute' in relation to the administration of estates provides that, in addition to the actions which survive at common law, certain actions particularly enumerated shall also survive, among which are “ actions to recover damages for an injury to the person.” This statute would seem to be too plain to admit of controversy, especially as applied to the facts alleged in the plea, viz., that the plaintiff’s death was not caused by the injuries complained of. If such was the case there can be no doubt that the action survived, and that under section 10 of the statute in relation to abatement, the administrator was properly substituted as plaintiff.

Some difficulty has arisen in other cases, out of the apparent conflict between the section of the statute in relation to the administration of estates, above cited, and the act of February 12, 1853,. giving an action to the representatives of a deceased person for the benefit of his next of bin, where the death is caused by a wrongful act, neglect or default, for which the party injured would, if death had not ensued, have been entitled to maintain an action and recover damages. This apparent conflict was elaborately considered by the Supreme Court in Holton v. Daly, 106 Ill. 131, and it was there held that where the death of the party injured is caused by the wrongful act, neglect or default complained of, the act of February 12, 1853, alone applies; but that where the injuries do not result in death, but the party injured dies before obtaining judgment, the action survives to the personal representative, under the provisions of section 123 of the statute in relation to the administration of estates. It thus appears that the averments of the plea bring the case clearly within the terms of the latter statute.

After said plea had been disposed of as above stated, the defendant moved, the court to strike from the plaintiff's declaration certain averments as to the permanency of the injury complained of, which motion was sustained in part by striking from each count the words “permanently crippled and disabled.” The defendant’s counsel thereupon asked leave to demur to the declaration, which being refused he asked leave to file a plea of not guilty and a plea of the Statute of Limitations, setting up the two years limitation provided by section 11 of the statute. This was also refused, and these rulings of the court are assigned for error.

It is difficult for us to see upon what ground the court was justified in striking out any part of the declaration, but as the plaintiff has not assigned errors it is unnecessary for us to consider that question. It is very clear, however, that the action of the court, striking said words from the declaration, did not make it a new declaration, so as to call for or open the door to new pleadings on the part of the defendant. Ho new case was made thereby, and no new fact alleged or issue .tendered. A plea of not guilty was already on file, and upon that plea issue had been joined and a trial had, and there was no occasion for further pleadings. So far as the defense of the Statute of Limitations is concerned, there is no pretense that the suit was not brought within less than two years after the cause of action accrued, and the claim that the change in the declaration, made by order of the court, constituted the action a substantively new one, so as to call for an application of the rule established by the case of I. C. R. R. Co. v. Cobb, 64 Ill. 128, and other similar authorities, is simply absurd. The efforts of the defendant’s counsel to introduce new pleadings seem to us to have been merely captious and unworthy of the' serious consideration of'the court.

At the trial the jury found the defendant guilty and assessed the plaintiff’s damages at $2,250, and for that sum and costs the plaintiff had judgment. It is urged that the verdict is contrary to the evidence. We have examined the evidence with care, and while we find it in some respects conflicting, we are of the opinion that it fairly sustains the verdict. The evidence clearly tends to charge the defendant’s servants who were running the locomotive engine by which the injury complained of was inflicted, with negligence, and we think the jury were warranted in holding that O’Connor, at the time he was injured, was in the exercise of ordinary care.

The jury were properly instructed as to the law, and we see no reason for disturbing their verdict. There being no error in the record the judgment will be affirmed.

Judgment affirmed.


text:
    Hannah Newman v. Streator Coal Company.
    Guabanty — Notice of acceptance. — Where the guaranty is a continuing guaranty of a future indebtedness, wholly uncertain and unlimited in amount and growing out of a series of transactions to be continued for an indefinite period of time, the guarantor is not bound, unless he is notified within a reasonable time that the party guaranteed has accepted the guaranty -and is acting under it. Held, that the instrument in this case was such a guaranty, and that there was no notice of acceptance.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding. •
    Opinion filed June 9, 1886.

      Messrs. Moses, Newman & Reed, for appellant;
    that notice of the acceptance of the guaranty was necessary, cited Adams v. Jones, 12 Peters, 213; Cooke v. Orne, 37 Ill. 189; Brandt on Suretyship, 251, § 157.
    The instrument sued on is not a continuing guaranty : Hayden v. Crane, 1 Lansing (N. Y.), 181; Gard v. Stevens, 12 Mich. 292; Whitney v. Groot, 24 Wend. 82; Baker v. Rand, 13 Barber (N. Y.), 125.
    Messrs. Fairchild & Blackman, for appellee;
    that further notice was not necessary in this case, cited Cooke v. Orne, 37 Ill. 185; F. & M. Bk. v. Kercheval, 2 Mich. 504; Paige v. Parker, 8 Met. 211; Douglas v. Howland, 24 Wend. 35; Walker v. Forbes, 25 Ala. 147.
   Bailey, P. J.

This was an action of assumpsit brought by the Streator Coal Company against Hannah Newman, on the following contract of guaranty:

“Chicago, April 17, 1883.
“ Streator Coal Company, Streator, III.,
Gentlemen: — I guarantee that your coal deal with Mr. S. Bosenfels will not result in a loss to your company.
“Respectfully, etc.,
“Hannah Newman.”

It is undisputed that this guaranty was signed by the defendant at the request of Bosenfels, on or about the day of its date, and delivered by her to Bosenfels, who soon after delivered it to the plaintiff. It also appears, without controversy, that no notice was given by the plaintiff to the defendant of the acceptance of said guaranty, or of any of the subsequent dealings between the plaintiff and Bosenfels, until after the service of summons in this suit, which took place June 7, 1884.

The testimony of but two witnesses — Alvin E. Tyler, the plaintiff’s secretary and treasurer, and the defendant — was produced at the trial, Bosenfels being then dead. It appears, from Tyler’s testimony, that for some ten months prior to the date of the guaranty Eosenfels, had been a customer of the jdaintiff in the purchase of coal, under a contract or arrangement by which Eosenfels was to pay the plaintiff for the coal purchased each month on the 15tli clay of the month next following ; that a short time prior to the execution of the guaranty, Eosenfels being behind in his monthly payments, the plaintiff determined to sell him no more coal until he had arranged for the payment of his account and made the plaintiff safe for the future ; that such determination being communicated to Eosenfels, the latter proposed to give the plaintiff a guaranty, and suggested the defendant as guarantor, saying that he would get her to sign a paper guaranteeing the plaintiff against loss: that the witness, on behalf of the plaintiff, after making inquiries as to the responsibility of the defendant, and finding it satisfactory, made a draft in pencil of such guaranty as the plaintiff desired, which Eosenfels copied and took away, and afterward brought back with the defendant’s signature thereon; that the plaintiff thereafter continued to sell coal to Eosenfels until about the last of December, 1883, and that his indebtedness for coal sold him during the months of October November and December, 1883, amounting to §1,383.50, still remains unpaid.

It appears that in June, 1882, about the time or shortly before the dealings between the plaintiff and Eosenfels commenced, the plaintiff wrote Eosenfels a letter offering to sell him coal for a year at a certain uniform price, provided that the number of tons purchased should be no larger in winter than in the summer; but there is no evidence that such proposition was ever accepted by Eosenfels, or that any dealings were ever had by the parties under it, but the contract or arrangement under which the parties actually dealt, according to the testimony of witness Tyler, seems to have been made upon a different basis.

The defendant on her part testified, that said guaranty was brought to her by Eosenfels; that he told her that he was about to make a contract with the plaintiff for the purchase of coal for a year at a fixed price, provided he bought the same amount in summer as in winter; that if he bought more in winter, and the market price rose, he was to pay the plaintiff the winter market price for the coal bought in the summer, and that the quantity was to protect the plaintiff against any loss in the difference between the agreed or contract price and the market price of coal; that she asked Rosenfels particularly if she was to be liable for the coal bought by him, and that he told her distinctly that she was not, reiterating the statement that the guaranty was to cover the deal between himself and the plaintiff, with respect to the difference between the winter market price of coal and the price at which the plaintiff agreed to sell him coal during the entire year.

Upon the trial, which was before the court, a jury being waived, the defendant submitted the following written propositions to be held as the law in the decision of the case, all of which were refused, viz.:

1. “That under the evidence in this case, in order to charge the defendant and make her liable as a guarantor or otherwise upon the instrument sued on in this case, it was the duty of the plaintiff to give the defendant notice, within a reasonable time after the receipt of said instrument, that the plaintiff had accepted said instrument or guaranty and was acting under the same, and was carrying on the coal deal mentioned in said instrument with Rosenfels on the strength and faith of said instrument of guaranty.

2. “ That if the court finds, from the evidence, that the plaintiff sold Rosenfels coal upon the agreement that he was to pay upon the 15th of each month for all coal sold and delivered to him during the previous month, and finds that said Rosenfels defaulted in making payment, then it was the duty of the plaintiff to give notice to the defendant of such default, and that said plaintiff had no right to continue selling and delivering coal to said Rosenfels after such default without the consent of the defendant.

3. That it was the duty of the plaintiff to give notice from time to time to the defendant of the amount of coal that the plaintiff was soiling and delivering to said Rosenfels upon the strength of said alleged guaranty.” The court thereupon found the issues for the plaintiff, and assessed its damages at §1,383.50, for which sum and costs the court, after overruling the defendant’s motion for a new trial, gave judgment for the plaintiff.

The only question we need consider is, whether the defendant can be held liable on her guaranty, in the absence of notice from the plaintiff that it accepted such guaranty and was acting under it. In solving this question it is important to determine the precise meaning and scope of the instrument, and the nature and extent of the liability on the part of Rosenfels which the defendant undertook to guarantee. The undertaking was to guarantee the plaintiff against loss upon its “coal deal” with Rosenfels. The language employed, as must be admitted, is not altogether clear and unambiguous; and the nature of the liability which the guaranty was intended to cover is not so stated as to render it possible to apply the instrument to its subject-matter without the aid of extrinsic evidence. Turning to the evidence, we find, not a contract between the plaintiff and Rosenfels for the sale and delivery of coal, but a mere course of dealings in which Roscnfels was purchasing coal of the plaintiff at such times and in such quantities as he saw fit, with no contract obligation on the part of either to continue such dealings except at pleasure. Shortly before" the execution of the guaranty, the plaintiff became dissatisfied on account of Rosenfels’want of promptness in making his payments, and elected, as it had a right to do, to discontinue selling him coal. Rosenfels then obtained from the defendant said guaranty, and on the strength of that security the parties resumed their dealings upon the same footing asbefore. These dealings, which were thus interrupted and which were to be resumed on the giving of the guaranty, were the only dealings then pending between the parties, or which could have been in their contemplation at the time that instrument was executed. The conclusion, then, is irresistible, that by the term “ coal deal” was meant the course of dealings in coal which the plaintiff and Rosenfels contemplated resuming and carrying on in the future in case satisfactory security should be furnished. But neither the amount of coal to be purchased nor the time during which the contemplated dealings were to continue was in any way "fixed or limited. There was no contract by which the plaintiff was bound to sell or Rosenfels to purchase a pound of coal. They were at liberty to deal with each other as little or as much and as long as they chose, there being no limit imposed upon their transactions, either in point of duration or amount. It is clear, then, that the instrument in question was a continuing guaranty of a future indebtedness, wholly uncertain and unlimited in amount and growing out of a series of transactions to be continued for an indefinite period of time.

The rule clearly deducihle from the general current of authority is, that a guaranty of this character can not be held to be binding on the guarantor, unless he is notified within a reasonable time that the party guaranteed has accepted the guaranty and is acting under it. We can refer here only to a few of the numerous decisions of the American courts sustaining this proposition. Thus in Mussey v. Rayner, 22 Pick. 223, it is said: “The general rule of law on this subject seems now to be well settled, requiring that in cases of a written guaranty for a debt yet to be created and uncertain in its amount, the guarantor should have notice, in a reasonable time, that the guaranty isaccepted, and tliatcredit has been given on the faith of it.” This rule was applied in Allen v. Pike, 3 Cush. 238, where the defendant signed a writing addressed to the plaintiff and another, declaring that he made lmnse1f liable for whatever amount a certain third person might become indebted to either of them. Ro notice of the acceptance of the guaranty having been given within a reason aRe time, it was held not to be binding on the guarantor. In that case the court say: The distinction is between an offer to guarantee a debt about to be created, the amount of which the party making the offer does not know, and it is uncertain whether the offer will he accepted so that he may he ultimately liable, and the ease of an absolute guaranty, the terms of which are definite as to its amount and extent. In the latter case, no notice is necessary to the guarantor; whereas, in the former case, the contract is not completed until the offer is accepted.”

In Babcock v. Bryant, 12 Pick. 133, the defendant gave the plaintiff a writing by which he agreed to be responsible and pay him for whatever goods had been or might be delivered to one Case. Certain goods were delivered by the plaintiff to the party named, and a considerable time afterward suit was brought against the defendant on his guaranty, no notice that-the plaintiff had been acting thereon having been given to the defendant; and it was held, upon the principle above stated, that he was not liable. In Norton et al. v. Eastman, 4 Greenl. 521, the defendant addressed a letter to the plaintiffs recommending one Farrington as of good credit up to a specified amount, and agreeing, in case the plaintiffs should trust him for that amount, to be accountable to them therefor in case of Farrington’s failure to make payment. Suit being brought to enforce the guaranty, the same rule was applied, the court, however, in its opinion, recognizing the rule that when a guaranty is absolute in its terms, and definite as to its amount and extent, no notice to the guarantor is necessary, as the very act of giving the guaranty carries with it notice of its nature and limits. In Tuckerman v. French, 7 Greenl. 115, it was held that notice was necessary, where the plaintiffs sold one Prescott certain goods on a letter signed by the defendant, by which the latter agreed to hold himself responsible for any goods the plaintiffs might sell said Preseotts up to §500.

In Douglas v. Reynolds, 7 Pet. 113, Mr. Justice Story, discussing the reasonableness of the rule, says: “A party giving a letter of guaranty has a right to know whether it is accepted, and whether the person to whom it is addressed means to give credit on the faith of it, or not. It may be most material, not only as to his responsibility, but as to his future rights a,nd proceedings. It may regulate in a great measure his course of conduct, and his exercise of vigilance in regard to the party in whose service it is given. Especially is it important in case of a continuing guaranty, since it may guide his judgment in recalling or suspending it.” So, in Edmonston v. Drake, 5 Pet. 634, Mr. Chief Justice Marshal], in discussing the rule, says: “It would indeed be an extraordinary departure from that exactness and precision which peculiarly distinguish commercial transactions, which is an important principle in the law and usage of merchants, if a merchant should act on a letter of credit of this character, and hold the writer responsible without giving notice that he had acted on it.” In Adams v. Long, 12 Pet. 207, the only question presented was, whether, upon a letter of guaranty addressed to a particular person, or to persons generally, for a future credit to be given to the party in whose favor the guaranty is drawn, notice is necessary to be given to the guarantor, that the person giving the credit has accepted or acted on the guaranty, and given credit on the faith of it; and Mr. Justice Story, delivering the unanimous opinion of the court says: “We are all of the opinion that it is necessary ; and that it is not an open question in this court. It is in itself a reasonable rule, enabling the guarantor to know the nature and extent of his liability, to exercise due vigilance in guarding himself against losses which might otherwise be unknown to hiin? and to avail himself of the appropriate means, in law and equity, to compel the other parties to discharge him from future responsibility.”

Of the other cases,, sustaining substantially the same doctrine, the following may be noted: Lawton v. Maner, 9 Rich. Law, 335; Kellogg v. Stockton, 29 Penn. St. 460; Unangst v. Heller, 26 Id. 150; Kay v. Allen, 9 Id. 320; Kincheloe v. Holmes, 7 B. Mon. 5; Sollee v. Mengy, 1 Bailey Law, 620; McCollum v. Cushing, 22 Ark. 540; Oakes v. Willer, 13 Vt. 106; Peck v. Barney, Id. 93; Howe v. Nichols, 22 Maine, 175; Thompson v. Glover, 78 Ky. 193; Taylor v. Shouse, 73 Mo. 361; Central Savings Bank v. Shine, 48 Id. 456; Bankin v. Childs, 9 Id. 665. See also, Brandt on Suretyship and Guaranty, Sec. 157 et seq., where the authorities on this question are collected and discussed. In New York the contrary doctrine seems to be held. Whitney v. Groot, 22 Wend. 82; Smith v. Dann, 6 Hill, 543; City National Bank v. Phelps, 86 N. Y. 484. It is plain, however, that the courts of Hew York are not in harmony with the current of authority on this question.

Many of the foregoing decisions proceed upon the principie that where the guaranty relates to a future indebtedness, uncertain in amount, the transaction is in effect only an offer to guarantee, and that it has only the force of an offer until the party making the guaranty is notified of its acceptance. It can not be doubted that in the present case there was no binding contract between the plaintiff and defendant, until the plaintiff had acted on the guaranty by selling and delivering coal to Bosenfels in reliance upon it. Until that was done neither party was bound. The plaintiff was under no contract which bound it to sell coal to Bosenfels, and notwithstanding the proposed guaranty, it was at liberty to sell to him or not, as it saw fit. The plaintiff was not bound to act upon the guaranty, and there was no certainty that it would ever do so. The guaranty could have no vitality until the creation óf a debt to which it could apply, and that was a matter wholly within the discretion of the plaintiff. It is also obvious, upon the same principles, that until the creation of some portion of the indebtedness, proposed to be guaranteed, the defendant was at liberty to treat the guaranty as a mere offer and withdraw it as not having been accepted. The transaction then being a mere offer, before it could be transformed into a consummated contract, it was necessary that there should be an acceptance, and that such acceptance should be communicated to the other party. Until that was done there could not be said to be that meeting of the minds of the parties which is always necessary to the formation of a valid contract.

There is a class of cases, as we have seen, where the offer and acceptance are cotemporaneous. To this class belong those cases where the guaranty is absolute in its terms and definite as to its amount and -extent. There are also cases where notice of the acceptance maybe constructive, or where it may be inferred from the circumstances of the case. Here, however, no such notice can be inferred. The plaintiff and defendant were strangers and had no communications with each other. All the defendant is shown to have known of the plaintiff, or of its business, or of its relations with Bosenfels, was derived from the communication made to her by Eosenfeis at the time she signed the guaranty. Much that he then told her is shown by the evidence to have been a pure fiction. The facts as represented did not exist. No such contract as that stated by Eosenfeis was pending or in contemplation. It is impossible to infer notice of the plaintiff’s acceptance of the defendant’s offer from Eosenfeis’ misrepresentations.

But even if he had told her the truth, he was acting for himself, and not for the plaintiff. It is doubtful whether he was not incapacitated to act as the plaintiff’s agent, and it is certain that he did not assume so to act. He had no authority to accept the guaranty on behalf of the plaintiff, or to communicate to the defendant the plaintiff’s acceptance; nor did he assume to make any such communication. He did not, tell her that she had already been suggested to the plaintiff as guarí ntor, and that the plaintiff, after investigating her circumstances, had declared itself satisfied with her responsibility; nor did he tell her that the guaranty itself was dictated or drawn up by the plaintiff’s secretary. Nothing was said to her indicating that a guaranty from her had been suggested to or considered by the plaintiff, or that an acceptance of her responsibility by the plaintiff had been determined upon, or was probable. It thus appears that the evidence in relation to the execution of the guaranty entirely fails to present any circumstances from which notice of the acceptance of the guaranty can be inferred.

There being no evidence of notice to the defendant that the plaintiff had accepted her guaranty and was dealing with Eosenfeis on the faith of it, her liability on the guaranty was not established, and the c >urt erred in finding the issues for the plaintiff. The court also erred in refusing to hold, as a matter of law, that such notice was necessary. For these errors the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Moran, J.

text:
    Lewis May, Assignee, etc., v. First National Bank of Attleboro.
    Pleading. — When the pleader is stating his right or deriving his title, the construction most unfavorable to him will be adopted when there are in the plea allegations which are equivocal or uncertain. The demurrer to the plea in this case was properly sustained, as it was fatally defective in failing to aver that the grantor of appellant had any title to the real estate at the time of the execution of the voluntary assignment.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed June 9, 1886.
    Appellee commenced suit by attachment in- the Superior Court of Gook county, and the attachment writ was levied upon certain real estate situate in Cook county. Appellant interpleaded, setting up a voluntary assignment for the benefit of creditors of the defendants in the attachment suit, executed in the State of Hew York, that plaintiff had actual notice of the deed of assignment and claims the real estate attached.
    The interplea is in the following words:
    “How conies Lewis May, a citizen of the State of Hew York, by J. G. Horton, his attorney, and by leave of court interpleads anew heroin according to the form of the statute in such case made and provided, and says that on the 12th day of July; 1881, the above named defendants, being copartners in trade, under the firm name of Halstead, Haines & Company, and doing business in the city and State of Hew York, and unab’e to pay their copartnership and individual debts, and being so insolvent they executed and delivered to him, the said Lewis May, their certain deed of assignment of the date last mentioned; which said deed was made, executed and acknowledged under and in conformity to the laws of the State of Hew York relating to general assignments by debtors for the henefit of creditors, and was, with the certificate of acknowledgment thereof, with -words and figures following to wit: (Here is set out the deed of assignment, in which the real estate is not particularly described.) And the said Lewis May further says that said deed of assignment was duly recorded in the office of the clerk of the county of Hew York, in said State of Hew York, and clerk of the Supreme Court of said county and State, as reqxured by the said laws of Hew York, on the day of the date thereof, and that he, the said Lewis May, accepted the said assignment as provided by said law, and took possession of the property therein described, so far as possible, and proceeded and still continues to apply the same according to the terms and provisions of said deed of assignment, and in pursuance of the said laws of the State of Hew York, and that the entire property so assigned and conveyed was at the time of making such assignment, and still is, inadequate to the payment of the debts of said defendants charged thereon.
    “And the said Lewis May, interpleading, further states that the said deed of assignment was recorded in the recorder’s office of Cook county, Illinois, on the 28th day of July, 1884, in book 1486 of records, at page 423, and that plaintiff herein had actual notice of the execution and delivery thereof prior to the commencement of this suit.
    “Wherefore the said Lewis May, interpleading as aforesaid, says that the goods, chattels, credits and effects attached and seized, and the real property levied upon by virtue of the writ of attachment issued herein, were, at the time of such attachment and levy, and still are, the property of him, the said Lewis May, as assignee, under and by virtue of said deed of assignment, and not subject to attachment herein; and this he is-ready to verify.
    “Wherefore he prays judgment, if the said goods, chattels, credits and effects ought to be detained, or further proceedings to be had against said real property by virtue of said writ herein.”
    To the interplea the court below sustained a demurrer and ordered the interplea to be dismissed. The case comes here by appeal and the action of the court in sustaining the demurrer is assigned as error.

      Mr. James S. Norton, for appellant.
    Mr. George L. Thatcher, for appellee.
   Moran, J.

A point is made on the interplea, by counsel for appellee, which we do not feel at liberty to pass over, and which, as we regard.it as well taken, precludes the consideration, by us, of the question raised upon the record by counsel for appellant.

The plea contains no sufficient averment that Halstead, Haines & Company held title to the real estate in question, at the time of the execution of the deed of assignment. The only statement in the interplea, approaching an averment of title, is the following:

Wherefore the said Lewis May, interpleading, says, that the goods, chattels, credits and effects attached and seized, and the real estate levied upon, by the writ of attachment issued herein, were at the time of the attachment and levy, and still are, the property of him, the said Lewis May, as assignee by virtue of said deed of assignment.” This is the mere averment of a conclusion of law from the facts previously alleged in the plea. There is an omission in the pleadings and no intend, ments or inferences can be indulged in by the court to aid the party in whose pleading a material omission occurs. The rule is, when the pleader is stating his right or deriving his title, the construction most unfavorable to himwill be adopted,when there are in the plea allegations which are equivocal or uncertain : Woodworth v. Paine’s Adm’rs, Breese, 375 ; Lemon v. Stevenson, 36 Ill. 52; Henkel v. Heyman, 91 Ill. 96. The plea failing to aver that the grantors of appellant had any title to the real estate at the time of the execution of the voluntary assignment, was fatally defective, and the demurrer was correctly sustained.

Judgment affirmed.


author: Morah, J.

text:
    Western Transit Co. v. B. T. Hosking et al.
    1. Common carrier — Limitation oe liability. — A common carrier can limit his ordinary liability only by a special contract, and the acceptance of a receipt or bill of lading with printed conditions, or notice limiting the carrier’s liability by the owner or shipper of goods without dissent, will not establish such a contract.
    2. Same — What necessaby to show. — In such case it is necessary to show that the shipper knew of and assented to the exemption, and such assent must be shown by other and additional evidence, and is not the subject of presumption from the terms of the receipt, alone.
    3. Agent to ship. — One who is the agent of the owner to ship or forward goods, is 'presumed to have authority to accept a receipt from the carrier containing conditions as to liability, in order to procure them to be forwarded.

      4. Lex loci — Presumptions.—If, in the Slate where a contract is made, there exists as a principle of its common law, established by the decisions of its courts, a legal presumption, arising upon certain acts of parties to a contract, which enters as a rule of evidence into their agreement, compelling or implying, Irom what they do and say, a certain inference or intention, such rule or principle of law will not be applied to the contract in the courts of another State where no such presumption exists, unless upon the trial, proof of the lex loci contractus is made, as a fact to be regarded by the court and the jury in ascertaining the contract between the parties.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 9, 1886.
    This was an action to recover the damages to a lot of fish, sustained by heating, in transportation from Boston to Chicago, over the line of the appellant company. The fish, eighty barrels, were packed at Halifax, and were shipped to Boston on the steamer Worcester, consigned toW. H. Bing, to be forwarded to Chicago to appellees. Evidence tended to show that the fish were shipped at Halifax in good condition, and further that they were in apparently good condition when delivered to appellant to be carried to Chicago. When they arrived in Chicago and were examined by appellees they were found to be spoiled from having been overheated. From Buffalo to Chicago the fish were of the cargo of appellant’s steamer, Milwaukee, and when taken from the vessel to the wharf at Chicago the packages were warm to the touch. Bing, who was the agent of appellees to forward the fish from Boston to Chicago, took a bill of lading from appellant’s agent- dated Aug. 19, 1884. On its face it is in substance as follows: “Beceived from" S. S. Worcester, in apparent good order, (except as noted) the following described property, to be carried or forwarded by the said company by its own or other means of transportation," subject to all the conditions of bill of lading of the Western Express (The Western Transit Co., proprietor). See other side.

    Marked H. "1 (80) Eighty bbls. Fish.
    Bobert B. Boak, I James F. Gay,
    Chicago, | Marble.”
    111. J
    Among the conditions on the back were the following, material to the question made in this case:

      “ 1. The shipper and owner, and each and all persons and parties interested in, or as to all or any of the said property, assent and "agree to the following as the conditions under which the aforesaid transportation or forwarding is undertaken for the consideration named.
    “ 2. The Western Express (The Western Transit Company, proprietors) shall not, nor shall any carrier, or any person or party in possession of all or any of the said property, or any vessel receiving all or any of the said property, or her master be liable for any loss or damage of or to all or any of the property, arising from, caused by, or connected with any one of the following mentioned causes or things, to wit: Any act of God,-heating-nor shall there be any liability on the part of the said company, or-for any loss or damage of or to all or any of said property, unless the same shall affirmatively and without presumption be proven to have been caused by the negligence of the person, party or vessel sought to be made liable.”
    By mistake of Bing’s clerk, who filled up the bill of lading, the name ec Beak ” was written in as the consignee, but the goods were promptly received by the appellees upon their being discharged from the steamer on which they were transported, and no injury was in any manner caused by the mistake.
    There was evidence tending to show that unless the goods had been stowed in some part of the steamer Milwaukee, reached by the heat from the boilers, the packages would not have been found warm when taken from the vessel; and while there was evidence on the part of the defendant showing where it was usual to stow fish on the Milwaukee, there was no evidence by either party showing where the fish had actually been stowed.
    There was a verdict and judgment for the plaintiffs and defendant brings the record here on appeal.
    Messrs. Schuyler & Kremer, for appellant.
    Messrs. Young & Makeel, for appellees.
   Morah, J.

The main contention in this case arises over the question whether the owners of the fish are bound by the conditions on the back of the bill of lading which was taken by the forwarder, Bing, at Boston. On the trial plaintiffs offered the receipt contained in the bill of lading, to show that appellants received the fish in good condition. It was competent for that purpose and was prima facie proof of that fact, though, if the contrary was the truth, appellants were at liberty to show it by any competent evidence. G. W. R. R. Co. v. McDonald, 18 Ill. 172; I. C. R. R. v. Cobb, 72 Ill. 154.

But appellant’s counsel objected to the receipt unless the whole bill of lading was offered, insisting that the receipt and the conditions on the back constituted one entire contract, and that the bill of lading, containing the printed conditions on the back, was received by Bing, the agent of plaintiffs to forward the fish, without dissent or objection, and the conditions exempting the appellant from liability from heating, and unless the damage to the' property should he/,-affirmatively proven to have been caused by the. negligence of appellant, was binding. Under the law as settled in this State a common carrier can limit his ordinary liability only by a special contract, and the acceptance of a receipt or bill of lading, with printed conditions or notice limiting the carrier’s liability, by the owner or shipper of goods, without dissent, will not establish such a contract. It must be shown that the shipper knew of and assented to the exemption, and such assent must be shown by other and additional evidence, and is not the sxxbject of presumption from the terms of the receipt alone. Western Transportation Co. v. Newhall et al., 24 Ill. 466; Adams Express Co. v. Haynes, 42 Ill. 90. Applying this rule to the facts in evidence in this case, and the conditions on the hack of the. bill of lading, those conditions did not become any part of the contract, and the court was bound under the axxthorities to admit the receipt as offered. Western Transportation Co. v. Newhall et al. supra; M. D. Transit Co. v. Thielbar, 86 Ill. 71.

It is undoxxbtedly true, as contended by appellant’s counsel, that ¡Ring, the forwarder, woxxld he presumed to have authority to make the contract for his principal, which it is claimed that he did make in this case. One who is the agent of the owner to ship or forward goods, is presxxmed to have authority to accept a receipt from the carrier containing conditions as to liability, in order to procure them to be forwarded. Nelson v. The Railroad, 48 N. Y. 498; Squire v. Railroad, 98 Mass. 239; York Co. v. Central Railroad, 3 Wall. 107.

And it may be true that the acceptance of the bill of lading, without dissent by-Ring, woxxld, xxnder the rule as. established in ¡Massachusetts, authorize the inference of assent to all the tei’ms and conditions contained in it, and amount to evidence of the contract between the parties. Grace v. Adams, 100 Mass. 505.

But appellant offered no proof, on the tidal of this case, that the acceptance of the bill of lading, without dissent, .woxxld constitute a contract under the law of Massachusetts. The court was bound to apply the law of Illinois to the facts in evidence, unless proof was made that there was a law entering into the contract where it was made, and with referenee to which the parties would be held to have dealt, which gave a different import, significance or construction to their acts.

If, in the State where the contract is made, there exists as a principle of its' common law, established by the decisions of its courts, a legal presumption arising upon certain acts of parties to a contract, which enters as a rule of evidence into their agreement, compelling or implying, from what they do and say, a certain inference or intention, such rule or principle of law will not be applied to the contract in the courts of another State where no such presumption exists, unless, upon the trial, proof of the lex locieontraoius is made as a fact to be regarded by the court and the jury in ascertaining the contract between the parties. A judge is bound to know the statutes and the common law of his own State, but not of another State: and the court will presume that the common law, as established in his own State, is the common law of the State where the contract is made, unless the contrary is proven as a fact. 1 Wharton on Ev., 300; 2 Phillips on Ev., 427, and cases cited in note.

This rule is illustrated in Hoadley v. The Northern Transportation Company, 115 Mass. 304. There the question arose in a suit brought on a bill of lading made in Illinois, and, to avoid the Massachusetts rule, the plaintiff made proof to the jury of the Illinois law by introducing in evidence the Illinois reports containing the cases which establish it.

The court below then committed no error in refusing to instruct the jury that accepting the bill of lading without dis. sent would constitute its conditions and limitations a binding contract between the parties. Tried by the law of this State, there was no error in admitting or rejecting testimony or in the instructions given, and as the evidence clearly supports the finding of the jury the judgment was correct and must be affirmed.

Judgment affirmed.


text:
    Mary J. Illingsworth v. Enos Slosson.
    Broker — Express contract. — A entered into a written contract with B by which he was to procure a loan for B. The amount to be procured, rate of interest, time, compensation, etc., were fixed and expressed in the contract. A did not procure any one who would make the loan on the terms fixed in the contract, but introduced 0, who made a loan for a less amount and at a higher rate. Held, that A could not recover any compensation.
    Appeal from the Circuit Court of Cook county; the Hon. John C. Rogers, Judge, presiding.
    Opinion filed June 16, 1886.
    This was an action brought before a justice of the peace, and taken on appeal by appellant to the circuit court, where a trial was had before a jury.
    Plaintiff’s claim was based upon a contract in writing, Avhich was in the following terms: “ Application for a loan. Enos Slosson. I, Mary J. Illingsworth of place and kind of business, physician, hereby engage your services as broker to procure for me a loan under the following conditions : Amount, $10,000; date, June 15; time, five years; rate; six per cent.; payable semi-annually; principal and interest payable at ; security, lots 27 and 28, block 44, in Carpenter’s addition to Chicago ; street number 352 and 354 Randolph street. Improvements, two story and basement stone and brick buildings ; size 44 and 50 or over; when built they Avill cost $10,000 ; rental, $2,400 ; value of ground, $10,000 ; present value of improvements, $1,200 ; total, $22,200; on the lot, uoav to be moved in the rear, two story frame building; insurance to be assigned to the amount of $8,000 or $100,00, for term of three or more if I can. Title in Mary J. Illings-Avorth, mother of G. M. IllingSAVorth; abstract of title made by Handy, Simmons & Co., Gilman & Pollock or Haddock, Coxe & Co., to he furnished for examination, and if loan is made, to be continued, showing the mortgage or trust deed (made for the security of the loan) of record and left with mortgage. If title is not found satisfactory, the applicant is to pay for the examination. Abstract of title has been examined by . Loan to be paid over in . Incumbrances, if any, to be paid off; §1,000 to be paid, due now ; commissions, two and one-half per cent. References, Van Schaak, Stephenson and Reed. Pay balance upon architect’s certificate, as proposed improvement progresses, a part to be reserved by E. Slosson, at his discretion, till improvements are completed and voucher for final payment shown.
    “ Gr. M. Illingsworth, f or “Mart J. Illingsworth.”
    The evidence tended to show that Slosson spent time and made exertions to comply with the contract, but that he did not procure any person who would make the loan on the terms fixed in the contract. He introduced Mayo, who finally made a loan on the property to Illingsworth, but it appeared that Mayo would not loan the amount mentioned in the contract, nor at the rate of interest specified therein. The meeting of Mayo and Illingsworth led to other negotiations between them, and an arrangement was consummated by which Mayo loaned §9,000 on the property for two years at seven per cent.
    The jury returned a verdict for §125, and the motion to set aside the verdict was overruled and judgment rendered, and the case comes here by appeal.
    Mr. Rufus King, for appellant;
    cited 2 Parsons on Contracts, 519; Taylor v. Beck, 13 Ill. 376; Bacon v. Cobb, 45 Ill. 47.
    Mr. W. B. Cunningham, for appellee;
    cited Hanford v. Shapter, 4 Daly’s Rep., N. Y., 243; Carter v. Webster, 79 Ill. 435; Lawrence v. Atwood, 1 Bradwell, 223; Dyer v. Sutherland, 75 Ill. 586.
   Moran, J.

The written contract between the parties to this case is plain, full and unambiguous. Slosson was engaged to procure a loan for Illingsworth of the sum of ten thousand dollars, for the term of five years, at six per cent, interest, and for doing so he was to be paid two and one half per cent, on said amount. The evidence shows that whatever he did about the matter he did in pursuance of the contract, and it further conclusively establishes that he failed to obtain any loan upon the conditions of the contract.

The plaintiff having clearly proven that he failed to perform the contract, we are at a loss to understand how he could obtain remuneration for what he did in trying to perform it. It does not appear that he was prevented from accomplishing what he undertook by any act of defendant, but it does appear that he could not accomplish what defendant agreed to pay him for performing. The contract is entire. What was to be done by one party and what was to be paid by the other is certain and fixed. In such case there can be no apportionment, and no recovery for any part of the consideration, until that for which it is agreed to be paid has been performed. 2 Parsons on Contracts, 520-522; Rockwell v. Newton, 44 Conn. 333.

Where the parties have made an express contract, no contract will be implied, and the action must be upon the express contract, and the recovery under its terms; and no recovery on the quantum meruit is authorized or can be sustained. Walker v. Brown et al., 28 Ill. 378; Ford v. McVay, 55 Ill. 119; Sickles v. Pattison, 14 Wen. 257. “One who, for a stipulated price, undertakes to find a purchaser for a farm, is not entitled to anything unléss he finds a purchaser willing to buy the whole farm. ” Weber v. Clark, 24 Munn. 354.

Cases cited by counsel for appellee, holding where brokers were given property for sale, or to find a customer, and through the efforts of the broker a customer is found, or the seller and buyer brought together, that the broker is entitled to his commission according to the customary rate, have no application to a case where there is a special contract; nor is any proof of custom admissible when the parties have covered the points by an express agreement. Collender v. Dinsmore, 55 N. Y.; Sandford v. Rawlings, 43 Ill. 92.

The jury has no right to give a verdict for some compensation to a party, on the general ground that he ought to have something for what he has done, when a contract is proven between the parties, by which they have agreed as to their respective rights and duties. The parties must be held to their contract, no matter how difficult, harsh or apparently unjust the operation of the rule may be. Bacon v. Cobb, 45 Ill. 47.

The verdict of the jury should have been set aside by* the court as being without support from the evidence, and the judgment was erroneous and must be reversed.

Reversed and remanded.


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    Edwin A. Sherburne v. The Tobey Furniture Company.
    1. Action for deceit. — To entitle a party to recover in an action for deceit, it must appear that the representations complained, of were untrue; that the party making them knew them to be false, and that- the person seeking to recover relied on the statements and was induced to act upon them.
    2. Tkespass on the case. — An action of “ trespass on the case on - promises.’’ The declaration alleged a contract by the defendant to manufacture, sell and deliver to the. plaintiff, for $8, a mattress, to be made of clean, fine wool, a breach of such contract and consequent damages. Disregarding the averments of misrepresentation and fraud, held, that the declaration was a sufficient declaration in assumpsit, and as the evidence tended to support the plaintiff’s action, as alleged in the declaration, it was error to instruct the jury to find for the defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed June 16, 1886.
    Mr. C. J. Michelet, for appellant.
    Mr. Arnold Tripp, for appellee.
   Bailey, P. J.

The summons in this case required the defendant, the Tobey Furniture Company, to answer the plaintiff, Edwin A. Sherburne, “in a plea of trespass on the case on promises,” and in the introductory part of the declaration the action is described as “ a plea of trespass on the case.” The declaration, which consists of but one count, alleges, in substance, that on the 1st day of June, 1880, the plaintiff bargained with the defendant for the purchase of a fine wool mattress for the sum of $8, and for which sum the defendant undertook to make, sell and deliv. r to the plaintiff a mattress of c'ean, tine wool; that the defendant did afterward deliver to the plaintiff a mattress, which it represented to be of the quality aforesaid, said mattress being covered with cloth so that the plaintiff could not see what was contained within it; that the plaintiff believed the representations of the defendant and accepted said mattress, and paid the defendant $8 therefor ; that the plaintiff, believing it to be clean and wholesome and made of clean wool as represented by the defendant, used the same for a bed for certain members of his family, and after .he had so used the same for a few months he discovered that it was infested with moths and worms; that he then caused the cover of said mattress to be ripped off and thereby discovered that said mattress was not made of clean, fine wool, but of a mixture of dirt and filthy rags of all colors and kinds, and was totally unfit for a bed or to be used in the house of any person; and the plaintiff says that the defendant, by means of the promises, falsely and fraudulently and Avith intent to cheat the plaintiff and to obtain his. money by false pretenses, deceived the plaintiff on the sale of said mattress, and thereby-.the said mattress, .then and there, not only became and was of no use or value to the plaintiff, but became and was a nuisance and a breeder of vermin, and endangered the health and lives of the plaintiff and his family, and the plaintiff was put to great expense to clear said moths out of his house, and was greatly annoyed and his furniture Avas injured, to his damage of $1,000.

The defendant filed a plea of “not guilty,” and at the trial the only witness sworn was the plaintiff, xvho testified in his own behalf, in substance, that in May, 1880, he wont to the defendant’s place of business to see one Potter, the defendant’s superintendent, and while there he was reminded that he needed a mattress at his house, and thereupon asked Potter what was the next best thing to a hair mattress, to which the latter replied, “ A tine wool mattress.” The plaintiff then asked, “ Is it made of clean wool ? ” to which Potter replied, “ Tes, of purified, clean wool.” To the plaintiff’s inquiry as to what such mattress would cost, Potter replied that they could sell a good one for §6, but that the' best would cost $8. Plaintiff then said that he had an Empire parlor bedstead for which he wished to procure a mattress, and that Potter might send him one of his best wool mattresses. Potter replied that if it was for an Empire parlor bedstead it would be necessary for the plaintiff to furnish him with a measure of the bedstead, as the defendant had none in stock which would fit it, but would have to make one. The plaintiff promised to furnish such measure, and in a day or two afterward did so, and two or three days later the defendant sent to the plaintiff’s house a mattress, which the defendant represented that it had made for the plaintiff pursuant to said order. The mattress was covered with a heavy, fine ticking, tightly sewed, so that it was impossible to see the material of which the mattress was made without ripping open the cover; but it appeared to be in all respects such a mattress as was ordered. The plaintiff used the mattress as a bed for himself and wife for four or five months, after which it was placed in an upper room, where it was never used unless there were guests in the house. A number of months afterward and, as the plaintiff admits, a little more than two years from. the date of the purchase of the mattress, a guest called the plaintiff’s attention to the condition of the mattress, and on examining it he found that it was infected with moths and worms. He immediately caused it to he ripped open and discovered for the first time that it was made of filthy cotton and woolen rags, and was infested with little worms from one third to one half an inch in length, and he also discovered that the carpet and upholstered furniture in the room was also, to some degree, infested with moths of the same character. He immediately caused the mattress to be removed from his house, and it cost him §15 to rid his carpets, furniture and rooms of said moths.

At the close of the evidence the court, at the instance of the defendant, instructed the jury to find the defendant not guilty, which was accordingly done, and the court, after denying a motion by the plaintiff for a new trial, gave judgment’for the defendant.

The respective counsel as well as the court below seem to have treated the case as an action of tort, to recover damages for fraud and deceit by the defendant in the sale of the mattress, and if under the pleadings and proofs the case must necessarily be so regarded, we are inclined to the opinion that the instruction to the jury to find the defendant not guilty was proper. To entitle a party to recover in an action for deceit, it must appear that the representations complained of were untrue; that the party making them knew them to be false, and that the person seeking to recover relied on the statements as true and was induced to act upon them. Merwin v. Arbuckle, 81 Ill. 501; Wheeler v. Randall, 48 Id. 182; Hiner v. Richter, 51 Id. 299; Schwabacker v. Riddle, 99 Id. 343; Budlong v. Cunningham, 11 Bradwell, 28; McBean v. Fox, 1 Id. 177. We are of the opinion that the plaintiff failed to make out a case according to the requirements of this rule. The representation made by Potter, the defendant’s superintendent, was merely that the defendant’s best wool mattresses were made of purified, clean wool. It does not appear that such representation was not in all respects true. There is no evidence that the plaintiff’s best wool mattresses were not made of that material. The plaintiff, after thus learning the quality of the material out of which such mattresses were made, ordered one to be manufactured and sent to his house. It can not be pretended that up to this point any deceit was practiced upon him. Some days afterward a mattress was delivered to him by the defendant, and the defendant represented, as the plaintiff testifies, that said mattress was made for the plaintiff pursuant to said order. Thisrepresentation also, so far as appears, was true. Ho evidence was offered tending to show that the mattress delivered was not in fact manufactured by the defendant -pursuant to the plaintiff’s order. The difficulty was not that the defendant or its agent had made some representation which was untrue, but merely that the defendant had failed to perform its contract in relation to the materials to be used in the mattress the plaintiff ordered it to manufacture for him.

But we are of the opinion that the action is neither in form or substance an action of tort. In the summons, as we have seen, it is called “trespass on the case on promises,” that is to say, assumpsit, and in the introductory part of the declaration it is termed “ trespass on the ease.” a phrase which is descriptive of a class of actions which includes assumpsit. 1 Chitty on Plead., 111; Carter v. White, 32 Ill. 509. If we look at the substance of the declaration, we find that it alleged a contract by the defendant to manufacture, sell and deliver to the plaintiff, for the sum of $3, a mattress to be made of clean, fine wool; a breach of such contract and consequent damage. These are all the substantial averments requisite to a sufficient declaration in assumpsit.

In Carter v. White, S'-pra, the commencement of the declaration recited, as here, that the defendant had been summoned to answer the plaintiffs in a plea of trespass on the case, and the summons was in like terms, and it was held that assumpsit was “an action on the case” and was properly entitled “an action of trespass on the case, ” and that to determine whether the action was really for a tort or upon a contract, resort must be had to the substance of the declaration.

Disregarding, then, the averments of misrepresentation and fraud, and viewing the declaration as a count in assumpsit setting up a contract, its breach and consequent damages, it can not be doubted, we think, that the evidence tends to support the plaintiff’s cause of action. It tends to show that the defendant undertook and promised to manufacture and deliver to the plaintiff a mattress made of certain specified material; that the mattress manufactured was made of materials of an inferior quality and of little value, and that the plaintiff thereby suffered damages. As the evidence tended to support the plaintiff’s action as alleged in the declaration, the court erred in instructing the jury to find their verdict for the defendant. For that error the judgment must be reversed and the cause remanded.

Judgment reversed.


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    John V. Farwell et al. v. Seth F. Hanchett et al.
    1. Vendor and vendee — Fraudulent representations — When no consideration GIVEN. — When goods are obtained by fraudulent representations by a vendee and no money, note or other thing of value has been given the vendor for them, nothing being required to be done to put the vendee in statu quo, the vendor may, without demand, maintain replevin for the goods against any person not holding them as a bona fide purchaser for value and without notice.
    2. Trespass or trover — Rescission at trial. — When goods have been obtained by fraud, and notes or other things of value have been given in exchange for them, and the vendor seeks to obtain, not the possession of the goods by replevin, but the value of the goods in an action of trespass or trover for the conversion, then the consideration received by the vendor med not be tendered back before action brought, but may be tendered back o i the trial, and the rescission so made at the trial will be in apt time, and in such case no prior demand need be proved to sustain the trover count.
    3. Replevin — Rescission—Demand.—But if goods are obtained by fraud and the vendor receives a consideration of any kind therefor from the fraudulent vendee, before he can maintain replevin for the goods, he must return or offer to return to the vendee, the consideration, whatever it may be, before bringing suit, and having done so and thus rescinded the contract, the original taking will, in law, be regarded as tortious and no demand n ;ed be made for the goods. If, however, the goods are taken on a replevin writ, without the contract having been rescinded by placing the vendee in statu quo, yet a return will not be awarded if plaintiff makes out his claim of fraud and the consideration is tendered back on the trial, but in such case the plaintiff will be subjected to the costs.
    4. Same. — The sheriff set up title to the goods in the alleged fraudulent vendee and claimed the right to hold them under his execution. Held, that the plaintiffs, vendors, were not entitled to maintain their replevin suit, not having rescinded the contract and tendered the vendee his note prior to the commencement of the. action, and this wholly irrespective of the question of demand, and the jury having, on the plea of property, found the title in the defendants, they were entitled to a retorno.

    Appeal from the Circuit Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 16, 1886.

      Messrs. Flower, Remy & Gregory, for appellants;
    that the taking was tortious, cited Kellogg v. Turpie, 93 Ill. 266; Doane v. Lockwood, 4 N. E. Reporter, 500; Dow v. Sanborn, 3 Allen, 181; Boyd v. Hall, 2 Keyes, 647; Johnson v. Morrell, 2 Keyes, 655; Story on Sales, § 445 a.
    The taking being xvrongful, no demand was necessary: Wells on Replevin, §§ 315, 365; Bristol v. Wilsmore, 1 Band. C. 514; Bancroft v. Blizzard, 13 Ohio, 30; Brussing v. Rice, 2 Cush. 48; Buffington v. Gerrish, 15 Mass. 156; Butters v. Haughwout, 12 Ill. 18; Ryan v. Brant, 12 Ill. 78; Hardy v. Keeler, 56 Ill. 152.
    Messrs. Brandt & Hoffmann, for appellees;
    that a proper demand xvas a condition precedent to the commencement of this suit, cited Moriarty v. Stofferan, 89 Ill. 528; Wells on Replevin, § 368; Tuttle v. Robinson, 78 Ill. 331.
   Moran, J.

This was an action of replevin brought by appellants against appellees to recover possession of certain dry goods, which it was claimed by appellants were purchased by Simon Heller from John V. Farwell & Co., by means of false representations as to his financial standing and ability, and xvhen he was insolvent and knew it, and that he made the purchases intending not to pay for the goods. To the declaration, which is in the usual form in replevin, defendants jointly pleaded non cepit, non detinet, property in Simon Heller, property in Abraham Heller, and as to Hanchett, the sheriff, a separate plea of justification under a certain execution against Simon Heller, in favor of Abraham Heller. On these pleas issue was properly joined, and the case was tried before a jury.

There was introduced in evidence a writing signed by Simon Heller as follows:

Chicago, Ill., April 1, 1882.
I, Simon Heller, of 167 Blue I. Ave., County of-, State ---, for the purpose of obtaining credit with John Y. Farxvell & Co., of Chicago, Ills., for goods which I may noxv or hereafter purchase of them, do make the following statement and representations of my present true financial circumstances, wealth and mercantile respectability, which said representations shall be the basis of my credit with John V. Farwell & Oo. during the period of five years from this date, agreeing to immediately notify them of any material change in or of my business matters during the period above mentioned.”

There follows a statement of assets and liabilities, showing Heller to be worth about ten thousand dollars above his liabilities.

Heller continued to buy goods from Farwell & Co. from the date of this statement until his failure in December, 1884, at which time he owed the firm something over four thousand ■ dollars.

December 1, 1884, Heller gave Farwell & Co. his note for $550, to apply on what was due from him to them. The goods sought to be replevied were purchased at different times during the year 1884, and there was much controversy .on the trial as to whether the goods taken on the writ were goods purchased from the Farwells. There was also a conflict in the evidence as to whether Heller made to the firm any statements or representations as to his financial condition subsequent to that made April 4, 1882, and evidence was in troduced by defendants tending to show that Farwell & Co. had knowledge from other sources, from which the change in

Heller’s condition during the two years could well be inferred. There was also a conflict as to whether the original statement when made, was true or false. Before commencing the action, plaintiffs made a demand for the goods, which were then in the possession of the sheriff, upon the chief deputy in the sheriff’s office, but no offer was made to surrender Heller’s note for $550, held by Farwell & Co., till upon the trial of the case. The court gave all plaintiffs’ instructions as asked, and gave on behalf of defendants the two following, of which appellants complain.

1. “ The jury are instructed that the fraud which will vitiate a contract which is made by false representations must be a representation of a past or present state of facts, and not of an intention for the future. The party making the representations must know it to be false and he must use it as a means to deceive. The complaining party must be ignorant of the facts, and believe the representations to be true. The party making the representation must intend it to .be acted on and the party complaining must have acted upon it.”

2. The jury are instructed that before the plaintiffs can recover in this case they must prove that they demanded the goods in controversy of Simon Heller, or of some one Avho, at the time, had them in his possession; and unless such .proof is made the plaintiff can not recover in this case.”

As to the first of the above instructions, it is insisted that it is in conflict Avitli one given on behalf of plaintiffs. We are inclined to the opinion that there is, in fact, no conflict between the instructions, but if a conflict can be found, in view of the written statement and the evidence in this case, Ave think defendants’ instruction states the law with sufficient accuracy, and if either is subject to adverse criticism, it is the instruction given at plaintiffs’ request. Defendants’ instruction is probably obnoxious to the objections pointed out in McBean v. Fox, 1 Bradwell, 177, but in this case the error is harmless.

The instruction on demand was not, in our opinion, warranted. If the plaintiffs had properly rescinded the sale of the goods by tendering to Heller, before commencing their action, his note, a technical demand for the goods would not be necessary.

Where goods are obtained by fraud practiced on the vend- or and the fraudulent contract is rescinded, the fraudulent vendee is not considered as a purchaser of the goods, but as a person avIio has tortiously gotten possession of them. Kellogg v. Turpie, 93 Ill. 266. That is, the original taking is treated as tortions, and in such case, where the goods are sold on credit and the vendor has not obtained the vendee’s note or money or other property in payment or exchange for the goods, so that there is nothing to be returned by the vendor to the Arendee, in order to place the vendee in statu quo, replevin for the goods may be maintained without a previous demand, where the goods remain in the possession of the fraudulent vendee, or are taken by an officer under an execution against him, or are in the hands of a purchaser from such fraudulent vendee, who was privy to the fraud. Acker v. Campbell, 23 Wend. 372; Bussing v. Rice, 2 Cushing, 48; Butters v. Haughwout et al., 42 Ill. 18; Hardy v. Keeler, 56 Ill. 152; Bruner v. Dyball, 42 Ill. 34; Goldschmidt et al. v. Berry, for use, etc., 18 Bradwell, 276.

In case, however, the vendor has received the notes of the fraudulent vendee, then, before he can rescind the contract of sale and reinvest himself with the title to and right of possession of the goods, the vendor must return or offer to return the consideration, whatever it may be, received from the fraudulent purchaser. In such case a formal demand for the goods will not rescind the contract, and if there is a proper rescission before replevin brought, no demand is necessary in order to entitle the plaintiff to maintain his action. An offer to return the consideration and a request for rescission, however informal, is sufficient, and no demand for the goods need be made. Parish v. Thurston, 87 Ind. 437. Some misapprehension as to this rule has arisen from the language used in the brief opinion of Mr. Justice Dickey, in Moriarty v. Stofferan, 89 Ill. 528. There the vendor had received the note of the vendee, from whom he endeavored to replevy the property sold without offering, before the action was commenced or on the trial thereof, to return the note. He, of course, was not entitled to the possession of the property at the time he commenced his action. The court said: If his allegation be true, he undoubtedly had a right to rescind the contract by offering to return the note. He, however, was not in condition to bring his action until he had offered to return the note and demanded the property.”

We do not think that by this language it was intended to rule that a formal demand for the property was necessary in such case in addition to a rescission of the contract, and from the opinion in the recent case of Doane v. Lockwood, 4 N. E. Reporter, 500, we understand this to be the view of the Supreme Court In that case, though the point as to the necessity of a demand was raised upon the record, the court entirely ignore the point and place the right to maintain the suit wholly upon the rescission of the contract; and in stating the case of Moriarty v. Stofferan, leave out all reference to a demand. Mr. Justice Scott, speaking for the court, says: “ Conceding then, as must he done, the making of the sale to Lockwood was procured by fraud, was it indispensable before plaintiffs coukl replevy the goods, there should be a formal rescinding of the contract of sale by returning to or offering to surrender to him the notes taken for the goods ? That is one of the principal questions made on this record. Undoubtedly the law is, where a party has received any valuable consideration upon the sale of property, he can not rescind the contract for fraud without returning or offering to return to the purchaser the consideration, whatever it may be. The title of the fraudulent purchaser is subject to be divested, at the ejection of the seller, within any reasonable time after the fraud is discovered.

When a sale is thus rescinded for fraud, it is as though no sale had been made, and in that event the original taking will be regarded as a tortious taking without the consent of the vendor, and the title at once becomes reinvested in him as though it had never been divested. Until the contract is rescinded, it is obvious, both the title and the right of possession remain in the fraudulent purchaser. This precise question arose in Moriarty v. Stofferan, 89 Ill. 528, and it was there held, that in case of fraud on the part of the vendee of chattels, where nothing but the promissory note of the vendee and another was received, the vendor, to rescind the sale, must ret/urn the note, and this must be done before replevin brought, otherwise the action was premature.

If, upon the rescission of the contract for fraud, it is as though no sale of the property had been made, and the original taking will be regarded as a tortious taking without the consent of the vendor, as stated in the opinion above quoted, it would be absurd and illogical, and in contravention of the well settled rule, to hold that a demand is necessary before replevin for the goods can be maintained, and the expression in Moriarty v. Stofferan which would seem to hold the contrary, must, we think, be regarded as inadvertent.

To summarize the doctrine as established by the cases in this State, when goods are obtained by fraudulent representations by a vendee, and no money, note or thing of value has been given the vendor for them, nothing being required to be done to put the vendee in statu quo, the vendor may, without demand, maintiin replevin for the goods against any person not holding them as a bona fide purchaser for value and without notice. Butters v. Haughwout and Bruner v. Dyball supra.

When goods have been obtained by fraud, and notes or other things of value havebeen given in exchange for them, and the vendor seeks to obtain, not the possession of the goods by replevin, but the value of the goods in an action of trespass or trover for the conversion, then the consideration received by the vendor need not be tendered back before action brought, but may be tendered back on the trial, and the rescission so made at the trial will be in apt time; apd in such case no prior demand need be proven to sustain the trover count. Ryan v. Brant, 42 Ill. 79.

But if goods are obtained by fraud, and the vendor receives a .consideration of any kind therefor from [the fraudulent vendee, before he can maintain replevin for the goods, he must return or offer to return to the vendee the consideration, whatever it may be, before bringing suit, and having done so, and thus rescinded the contract, the original taking will, in law, be regarded as a tortious taking, and no demand need be made for the goods. If, however, the goods are taken on a replevin writ, without the contract having been.rescinded, by placing the vendee in statu quo, yet a return will not be awarded if plaintiff makes out his claim of fraud, and if the consideration be tendered back on the trial; but in such case the plaintiff will bo subjected to the costs. Moriarty v. Stofferan, supra Doane v. Lockwood, supra.

It is contended by counsel for appellees that, the goods in this case being in the possession of the sheriff by virtue of an execution against the alleged fraudulent vendee, a demand upon the sheriff was necessary. We do not see that the position of the sheriff is any better than that of the fraudulent vendee, if the sale is properly rescinded : Story on Sales, Sec. 445; Ayers v. Hewitt, 19 Me. 281; Bancroft v. Blizzard, 13 Ohio 30; Sargent v. Storm, 23 Cal. 359. The dicta in Tuttle v. Robinson, 78 Ill. 334, do not establish the propositions, particularly under facts as in this case.

But the sheriff in this case set up title to the goods in Simon Heller, and claimed a right to hold them under his execution, and throughout the trial contested, as did the other defendants, the plaintiffs’ ownership of the goods, and this wholly superseded the necessity of proving a demand. Crauz v. Krogur, 22 Ill. 74; Lewis v. Smart, 67 Me. 206; O’Neil v. Bailey, 68 Id. 429; Wells on Replevin, 374.

The instruction, therefore, should not have been given, but the error in giving it will avail the plaintiff nothing on this appeal, as we do not think it tended in any manner to mis7 lead the jury on the issue as to the ownership of the property, on which issue the case was mainly tried, and on which issue the jury found the property to be in the defendant Simon Heller, and subject to the execution in the sheriff’s hands.

This finding we think supported by the weight of the evidence. Under Doane v. Lockwood, supra, plaintiffs were not entitled to maintain their replevin suit, not having rescinded the contract and tendered Heller his note prior to the commencement of the action, and this, wholly irrespective of the question of demand; and the jury having, on the plea of property, found the title in defendants, it follows that defendants were entitled to a retorno, and the court below was right in so awarding. The difference between this case and Doane v. Lockwood, in this respect, is, that there the court took the case from the jury, and the evidence tending to show property in the plaintiff, the Supreme Court held that the contract having been rescinded on the trial the defendant was not to have return of the property. "Here, however, upon all the evidence, the jury have found the property in the defendant, therefore he must have return.

The judgment will be affirmed.

Judgment affirmed