text:
    City of Chicago v. Samuel B. Kimball, Adm’r, etc.
    1. Negligence—Defective sidewalk.—The city, upon a portion of a street, had raised the sidewalk about five feet above the grade, and at the terminus of this raised portion the sidewalk stopped abruptly, with a height of five feet, with no steps, and only a plank, twelve inches wide and about twelve feet long, was laid as a bridge to pass up and down upon. About dusk, deceased, who was in her 71st year, attempted to make the descent of the plank with the assistance of a gentleman in this way: he was to walk slowly down and she follow him supporting herself by placing her hands upon his shoulders; when about the middle of the plank it, being defective, began to shake up and down ■ so that deceased lost her balance and was precipitated into an excavation adjoining, fracturing her ankle, rendering amputation necessary, and death ensued. Held, that it was a fair and proper matter for the jury to say whether or not the deceased was in the exercise of ordinary care, and this court ought not to interfere with the verdict on that ground.
    2. Damages.-—In this case $1,000 verdict was not such a one as to create any suspicion that the jury were actuated by passion or prejudice, or clearly misapprehended the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed January 27, 1886.
    Mr. Hempstead Washburns and Mr. Clarence A. Knight, for appellant.
    Mr. Egbert Eae and Mr. F. Q. Ball, for appellee.
   McAllister, J.

This was an action under the statute, brought by appellee, as the administrator of the estate of Isabella-Goodall, deceased, against the city, appellant, to recover damages to the next of kin of deceased, upon the ground that her death was the result of an injury received by her by reason of the city’s negligence in respect to one of its public streets. Upon the trial the jury found the defendant guilty, and assessed plaintiff’s damages at one thousand dollars, for which judgment passed and defendant comes here by appeal. It appears that prior to September 26, 1882, the city, upon a portion of Johnson street, had raised the sidewalk about five feet above the grade where it formerly and the remainder of it was; that one of the terminations of this raised sidewalk was alongside a lot which had been excavated for building purposes, some two feet or more below the grade of the old sidewalk; that at this terminus of the raised walk there were no steps to aid the traveler to descend down to the grade of the old walk ; that it stopped there abruptly having a descent of about five feet to the old walk ; that to enable those traveling thereon to pass down, a plank twelve inches wide and about twelve feet long was placed with one end on the end of the raised sidewalk, and the other down upon the old walk, and there were neither signals, barriers nor railings; that about dusk of the evening, September 26, 1882, the deceased, who resided some five blocks away, being then in the seventy-first year of her age, started in company with a Mr. and Mrs. Smith and a Mrs. Eckhart, to go to church, it being Sunday evening ; that ,on their way they reached the spot above described, and deceased, evidently having no previous knowledge of the place, hesitated about descending the plank; finally she was prevailed upon to undertake to go down, with the assistance of Mr. Smith, in this way: he was to walk slowly down and she follow him, supporting herself by placing her hands upon his shoulders; that they proceeded in that way until they reached about the middle of the plank, when the latter being defective began to jiggle or shake up and down to such an extent as that deceased, from that motion and the narrowness of the plank, lost her balance and was precipitated into said excavation, upon stones and bricks, suffering thereby a bad fracture of one of her ankles; that although duly attended to amputation became necessary, soon after which she died. The injury was the cause of her death. It appeared that the sidewalk at that place had been in the same condition as it then was for at least six weeks.

There was no evidence offered on behalf of the city. There is no question of law arising upon0 the giving, refusing ormodifying instructions, or as to the admission or exclusion of evidence. But counsel for the city urge that deceased was guilty of gross negligence in attempting to descend the plank, and that we should say, as matter of law, such negligence barred a recovery. We are of opinion that, in view of the peculiarity of the circumstances, it was a fair and proper matter for the jury to say whether or not the deceased was in the exercise of ordinary care in attempting to descend the plank in the way she did, and that the jury having found that she was, we ought not to interfere with the verdict on that ground. That the city was guilty of a gross violation of its duty to the public in so constructing and leaving said sidewalk, there is no room for doubt. But in considering the question 'of ordinary care on the part of deceased it must be borne in mind that such raised sidewalk and plank were tendered to the public as a safo way. There were no signals or barriers or aught else to indicate that the city authorities regarded it as dangerous, hut there was, on their part, an implied invitation to the public to pass there. How, can we say, as matter of fact, that the precautions which the deceased took were not such as all reasonably prudent persons would have taken, under like circumstances ? Can we' say that she was lacking in common prudence to undertake to make the descent in the way she did? If the plank had not been defective, in all probability ten thousand persons could have gone down in the same manner without one being hurt; and so, probably, could deceased. The circumstances of this case are peculiar, and they distinguish it from all the cases cited by appellant’s counsel.

The counsel also urge a reversal on the ground that the damages are excessive. We do not think that the damages are so excessive as to bring the case within the. rule by which appellate courts are guided in reversing judgment upon that ground in actions under the statute like this, or actions sounding in damages. There is nothing in the ease or as respects the sum at which the jury fixed the damages to create even a suspicion that the jury were actuated by passion or prejudice, or clearly misapprehended the evidence. Perceiving no error in the record the judgment will he1 affirmed.

Affirmed.


source: Caselaw Access Project

author: Wilson, J.

license: Public Domain

text:
    William Sallwasser v. George K. Hazlitt & Co.
    Expert testimony.—The opinion of witnesses possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable, of forming a correct judgment upon it without such assistance. Expert testimony held admissible to prove the grade of a handsomely illustrated catalogue.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed January 27, 1886.
    Mr. John Gibbons, for appellant;
    that the evidence was admissible, cited Ward v. Salisbury, 12 Ill. 369; Alexander v. Town of Mt. Sterling, 71 Ill. 367; Camp Point Mfg. Co.v. Ballou, 71 Ill. 417; Folkes v. Chadd, 3 Doug. 157.
    Mr. H. C. Bennett, for appellees."
   Wilson, J.

This was assumpsit brought by appellees against appellant to recover the price of certain illustrated catalogues printed by appellees for appellant.

The declaration contained the common counts, to which the defendant pleaded non assumpsit and a special plea setting up in substance that the plaintiffs contracted to print and furnish to defendant 8,000 copies of an illustrated catalogue, to he in every respect equal to a sample catalogue submitted to them by him at the time of making the contract. The plea avers that the plaintiffs wholly refused and neglected to furnish defendant with catalogues as per said sample, but instead thereof printed certain catalogues which were materially different from the catalogues ordered by the defendant, and were of such inferior quality and workmanship as to be wholly worthless to the defendant and that the defendant wholly refused to receive them from the plaintiffs, etc.

There was a jury trial resulting in a verdict and judgment for the plaintiffs for $287.25 the agreed price for the catalogues.

It is not entirely clear that the. plaintiffs were entitled to recover under the common counts, since the evidence leaves it uncertain whether the contract for furnishing the catalogues was fully executed on their part by delivering or offering to deliver the same to the defendant. But as the judgment must be reversed upon another ground, it is unnecessary to express any opinion since the plaintiffs may, if they think fit, amend their declaration before another trial.

The defendant in support of his special plea called as witnesses several persons who had for many years been engaged in the printing and book making business, by whom he proposed to prove that the paper, ink and presswork of the catalogues printed by the plaintiffs, to recover for which the suit was brought, were inferior in grade and workmanship to the sample which the plaintiffs had contracted to duplicate. This evidence the court refused to admit on the ground that the jury could judge for themselves from inspection. In this ruling we think the court érred.

The testimony offered was that of experts—men who by long experience were skilled in that line of business, and were capable of judging whether the catalogues furnished by the plaintiffs were equal or inferior to the sample, both as to the material and character of the workmanship. The rule on this subject is stated in 1 Smith’s Lead. Cas. 286, thus: “ The opinion of witnesses possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.” It is easy to perceive that the persons of whom juries are ordinarily composed would be very unlikely to possess sufficient.skill to form a correct judgment as to the grade of a handsomely illustrated book or catalogue. The illustrating of books has become one of the fine arts, an expert knowledge of which is only attainable by long practice and experience. The effect and value of an illustrated book or catalogue depends very much upon the quality of the paper, the kind of ink, and the character of its typography. Unskilled persons can hardly be expected to judge correctly between different grades. It is to aid the judgment of men who are called upon to decide in such cases that expert testimony is resorted to, and it seems to us quite clear that it was properly admissible in the present case. The only point of contention was as to whether the catalogues furnished were equal, to the sample, and on that question the sworn testimony of experts could aid the jury.

It is urged that proof sheets were submitted to the defendant, from time to time, as the work progressed, and were approved by him. But it is matter of common knowledge that only a very inadequate judgment can be formed as to the ultimate appearance of printed matter from proof sheets.

The defendant swears that when the proofs were submitted to him he did not know they were submitted for any purpose except .to correct typographical errors, and tho evidence tends to show that as soon as he was presented with copies of the completed catalogue, he rejected them as not being such as lie contracted for.

For the error of the court in rejecting the expert testimony the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


author: McAllister, J.

text:
    Village of Lemont v. Miller A. Rood et al.
    1. Excavation in street—Negligence.—Where a city makes an excavation or ditch in a street and suffers it to remain at night without light or barrier, and a person in the exercise of ordinary care is injurecl through the neglect of such reasonable precaution on the part of the city, an action will lie for such injury.
    2. Instructions.—Where in such an action, instead of submitting in an instruction to the jury in clear and intelligible language the question whether deceased was in the exercise of ordinary care the following words were used: “While in the exercise of care proportionate to the known danger (if such danger there was and if it was known to the deceased) to protect himself from injury.” Held, erroneous.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed January 27, 1886.
    This was an action of case under the statute, brought by the administrators of Joseph E. Rood, deceased, the appellees, against the village of Lemont, appellant, to recover for the pecuniary loss to the widow and next of kin of deceased, resulting from his death, which was occasioned, as it is alleged, by the negligence of the village, in causing an excavation to be made in one of its streets, and suffering the same to remain at night without any signal lights or sufficient barriers. It appeared on the trial, that a little prior to October 24, 1884, the village was engaged in making an improvement, by laying a water main in said street, and had excavated a ditch about two feet wide and five feet deep longitudinally therein and left the same without signal lights or sufficient barrier; that the streets were not lighted; that deceased being a physician residing there, had a call between one and two o’clock of the morning of that day to go six miles in the country, to attend a woman in confinement; that he was in bed asleep when called; that preparing himself, he saddled his horse, mounted and started; that it was very dark and there was no witness to the disaster which befell him ; but after daylight he was found lying in the bottom of said ditch with his horse on top of him. The doctor was dead when found, and his position and the circumstances clearly indicated the manner and cause of his death. The evidence upon the question whether or not he was in the exercise of ordinary care, was wholly circumstantial. The plaintiffs gave evidence tending to show that he was a man of uniform sobriety, and was prudent in his general habits. The defendant gave evidence tending to show that he was familiar with the streets and ways of said village, and that he had knowledge of the existence of said ditch, and also the appearanee, when he was found, of the tracks of the horse in the dirt beside the ditch, which, it was claimed, showed that the horse did not proceed directly into it.
    The court below, on behalf of plaintiffs, gave to the jury the following instructions:
    “ If the jury believe from the evidence, that on October 24, 1884, Lawrence or Canal street, in the village of Lemont, was a public highway, and that there was in said street and within the limits of said village, a ditch dug, or caused to be dug by the authorities of that village, or with their knowledge and consent, and that said authorities permitted said ditch to remain at night unguarded and unprotected, and without lights or other means sufficient to warn reasonably prudent persons traveling on said street, of the existence of said ditch, as alleged in the declaration filed in this case; and if the jury further believe from the evidence, that in the early morning, at about two or three o’clock, and before daybreak on said day, Joseph B. Bood, when traveling on said street on horseback, while said ditch was so unguarded and unprotected, if such was the fact, and while in the exercise of care proportionate to the known danger, (if such danger there was, and if it was known to the deceased,) to protect himself from injury, was by reason of said ditch so being left unguarded and unprotected, if such was the fact, thrown into said ditch and under the horse upon which he was riding, and killed, as alleged in said declaration, and that said Joseph B. Bood left a widow and next of kin surviving him, who have sustained a pecuniary loss or injury by reason of his death, as alleged in the declaration filed in this case, then the jury will find the defendant guilty, and assess the plaintiffs’ damages at such sum, if any, as the jury shall believe from the evidence that said widow and next of bin have sustained by reason of the death of said deceased, having reference only to the pecuniary injury or loss, if any, sustained by such widow and next of kin, not- exceeding five thousand dollars, in any event.
    ‘‘ The jury are instructed that it was the duty of the defendant to use reasonable diligence to keep the street in question in a reasonably safe condition; and if the jury believe from the evidence, that the defendant failed to perform such duty, and that by reason of its negligence in that regard, if such there was, the said street was permitted to remain out of repair and in a dangerous condition, and with the knowledge of the village authorities, (all as alleged in the declaration filed in this case,) by reason whereof said Joseph B. Rood, while exercising care on his part, proportionate to the known danger, (if such danger there was, and if it was known to the deceased,) was killed, as averred in the declaration, then the defendant is liable in this action. And the court further instructs the jury, that if they find from the evidence that said J. B. Rood was himself guilty of some negligence, contributing to the injury in question, but the defendant was guilty of gross negligence, contributing to such death, and that J. B. Rood’s negligence, if such there was, was slight as compared with the negligence of the defendant, if such there was, still plaintiff may be entitled to recover.
    “The jury are instructed that if they believe from the evidence that no one witnessed the accident which caused Dr. Rood’s death, whereby it might be shown whether he exercised care proportionate to the known danger, (if such danger there was, and if it was known to the deceased,) at the time of the accident and prior thereto, then they may take into consideration, as bearing upon that question, his habits in life for caution, prudence and sobriety, so far as shown by the evidence.”
    The jury found the defendant guilty and assessed plaintiffs’ damages at five thousand dollars, and defendant prosecutes this appeal.
    Mr. A. B. Jenks and Mr. W. H. S. Kelly, for appellant.
    Mr. Thomas S. McClelland, for appellees.
   McAllister, J.

It is not claimed in this case that the village of Lemont was not authorized by law to make the improvement, in the course of which the excavation or ditch in question became necessary. Nor is it claimed that the corporation did not owe to the public the duty of keeping its streets in a reasonably safe condition for travel Tooth by day and by night. But although the corporation had the legal authority to make the ditch or excavation for such purpose, yet the law required it, while pursuing the work, to use reasonable precautions for the security of the public, such as barriers, lights or otherwise. And it is well-settled law that for a breach of such duty, where a person in the exercise of ordinary care is injured through the neglect of such reasonaFe precautions, an action will lie for such injury. Storrs v. The City of Utica, 17 N. Y. 104; Brooks v. Inhabitants of Somerville, 106 Mass. 271; Morton v. Frankfort, 55 Maine, 46 ; Silvers v. Neidlinger, 30 Ind. 53.

Two things must concur to support this action: an excavation or ditch in the street, suffered to remain at night without light or barriers, through the fault of the defendant, and no want of ordinary care on the part of the deceased to avoid falling into it. Butterfield v. Forester, 11 East, 60 ; Smith v. Smith, 2 Pick. 621. That is the settled law in this State. C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 521, where the court says : “ To maintain an action for negligence, there must be fault on the part of the defendant, and no want of ordinary care on the part of the plaintiff.”

Instead of submitting to the jury, in clear and intelligib'e language, the question whether the deceased was in the exercise of ordinary care on the occasion of the injury, each of the three instructions given to the jury on behalf of the plaintiffs, uses only the following words: “While in the exercise of care proportionate to the known danger (if such danger there was, and if it was known to the deceased), to protect himself from injury.”

Whether or not the deceased was, at the time of the disaster to him, in the exercise of ordinary care to avoid it, Avas a vital question in the case, and its determination by the jury depended entirely upon circumstantial evidence.

It is plain, therefore, that it was necessary to a proper conclusion by the jury upon that question that the instructions of the court in respect to it should have not only stated the law correctly but have been so clear and unambiguous as to have no substantial tendency to mislead. Those for plaintiff, to which we have referred, wholly omitted to state the rule of ordinary care on the part of deceased, but substituted another and different rule, not equivalent to that of ordinary care, and in terms so ambiguous as to be likely to confuse and mislead. But they admit of the construction that deceased was subject to no duty as to care and prudence beyond what danger was actually known to him. Whether that meant danger which was formerly or then known to him is left in doubt. So that if the jury should find that he formerly knew of the ditch, or even the danger, but at the time he, for any cause, then failed to remember it, so that he did not hnow of the danger at the time, he was then subject to no rule as to care on his part.

A person may have had a general knowledge of a source of danger previously to an injury from it, and such knowledge will not necessarily prevent a recovery, if under the circumstances he might still, in the exercise of ordinary care or prudence, be unaware of his proximity to it, as by having his attention distracted from it by some sufficient cause. 2 Thomp. on Neg. 1204; Nicks v. The Town of Marshall, 30 Wis. 139; Pollard v. Woburn, 104 Mass. 84; George v. City of Haverhill, 110 Mass. 506; Bassett v. Fish, 75 N. Y. 303; Weed v. Village of Ballston Spa, 76 N. Y. 830.

We are of opinion that the instructions were erroneous in the particular stated, for which error the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    Julius Stein et al. v. Leo Metzger et al.
    1. Contract.—A contract between parties, one condition of which was that the goods were to be furnished and delivered at once, and there was an express provision that if they were not furnished and delivered within the time contemplated the defendants might return to plaintiff's the goods not delivered within such time. Held that no time being specified within which such return should be made the law would imply that it should be done within such time as was reasonable in view of all circumstances.
    2. Same.—A portion of the goods not. being sent on time, defendant returned to plaintiffs such goods within a reasonable time, as disclosed by the evidence, and plaintiffs refused to receive the goods from the carrier and now bring indebitatus assumpsit against defendants for goods sold and delivered. Held that plaintiffs had no option to refuse the goods when returned and that they have no right to recover the price of them in this action; the doctrine that if the buyer would rescind an entire contract he must rescind in toto does not apply to this case as the return is in pursuance of an express provision of the contract. Defendants would be liable only upon a quantum valebant for the goods received and used.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony,. Judge, presiding.
    Opinion filed January 27, 1886.
    Messrs. Weigley, Bulkley & Gray, for appellants.
    Messrs. Flower, Bemy & Gregory, and Mr. H. K. Tenney, for appellees.
   McAllister, J.

This was indebitatus assumpsit by appellees against appellants, for goods sold and delivered. Flea, the general issue. The case was tried by the court without a jury and resulted in finding and judgment for plaintiffs for $621.25 damages, and defendants prosecute this appeal. The defendants admit an indebtedness to plaintiffs in the sum of $256.50, and claim that the balance of the judgment is not only not supported by the evidence, but against the undisputed evideuce in the case. The material facts are shown by uncontradicted testimony, and are: That plaintiffs being dealers in furs in the city of New York, and defendants being manufacturers of cloaks in the city of Chicago, the defendants, November 10, 1883, at Chicago, gave an order to plaintiffs’ agent for certain specified kinds and quantities of fur goods, at agreed prices, to be furnished by plaintiffs in New York to defendants at Chicago, to be used in the business of the latter for trimming cloaks. As the season for defendants’ use of them would expire somewhere from the fifteenth to the twentieth of that month, of which plaintiffs were informed, it was expressly agreed that plaintiffs should fill the order at once, and that any of such goods as were not received by defendants in time, they might return to plaintiffs. At the time of making the contract said agent of plaintiffs stated to ‘defendants that the former had the goods in stock. The plaintiffs, in performance of the contract, sent from New York by express a portion of the goods November 12,1883, and from that date to and including the 24th, same month, made four other shipments, which the defendants received and accepted, and about which there is no controversy in this case. But on November 28th and 30th, respectively, plaintiffs in like manner shipped other portions of the goods so ordered, and December 1 and 4,1883, made shipments of what remained, to complete the contract. The defendants refused to accept any of the goods shipped after November 24tli, and December 4 and 11, 1883, re-shipped to plaintiffs all that had been so rejected, which -were tendered by the carrier to the plaintiffs, who refused to receive them. The matter of the goods so returned by defendants to the plaintiffs constitutes the only ground for controversy in the case. But the court below held that defendants were liable to plaintiffs for the agreed price, s.nd under the general indebitatus count for goods sold and delivered, gave judgment accordingly. We are of opinion that, under the undisputed facts of the case, such ruling was erroneous. By the order as given by defendants and accepted by plaintiffs, or in other words by the contract between the parties, the plaintiffs rvere to furnish the goods at once. That required greater promptness than ii the contract had expressly or impliedly required them to send the goods within a reasonable time. Such time—at once— was an ingredient or condition of the contract—was of the essence of it. The plaintiffs clearly did not comply with, but committed a breach of their contract; and if defendants had taken and used any of the goods shipped after such breach they would not be bound to pay the agreed price, but would be liable only upon a quantum valebant for the goods so received and used, as in the case of goods delivered under an executory contract of sale, which did not answer the description of those ordered by the buyer. Shields v. Reibo, 9 Bradwell, 602; Cutter v. Powell, 2 Smith’s Lead. Cases, 34.

The contract between the parties in this case was an executory, conditional contract of sale. One condition was that the goods were to be furnished and delivered at once. The other was an express provision that if they were not furnished and delivered within the time contemplated the defendants might return to plaintiffs the goods not delivered within such time. No time being specified within which such return should be made, the law would imply that it should be done within such time as was reasonable in view of all the circumstances.

We are of opinion that the return by the defendants was within such reasonable time, under the circumstances disclosed by the evidence. The plaintiffs, it is true, refused to accept the goods so returned, but the contract expressly giving the defendants the right to return them, then if they exercised that right within a reasonable time the plaintiffs had no option to refuse them when returned. They were bound to receive them, and therefore it is the same as if they had accepted them. Buller, J., in Towers v. Barrett, 1 Term R. 133. Most assuredly if they had accepted the goods returned, they would have been barred of the right to recover the price of them in this action. The general doctrine, that if the buyer would rescind an entire contract he must rescind in toto, does not apply to this case; because here the return is in pursuance of an express provision of the contract itself.

The judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Samuel Flower v. John V. Farwell et al.
    1. Fraud to invalídate contract of sale.—Mere legal fraud will not’affi ord ground for invalidating contracts for sale of goods or for maintaining an action for damages; there must be moral fraud or dishonest intention.
    2. Same.—Where a person obtains goods under the pretense of a purchase, with the intention not to pay for them, hut with the design to cheat the vendor out of them, this would be such a fraud as would invalidate the sale and lay the foundation for an action at law.
    8. Instructions.—In an action on the case for fraud in the purchase of goods, an instruction that “ if a merchant buys goods on credit without intending to pay for them, this is a fraud upon the seller and will entitle him to avoid the contract of sale and sue for the value of the goods in an action based on such fraud; that if the jury believe from the evidence that defendant obtained such goods upon credit without intending to pay for them, then their verdict should be for plaintiffs.” Held, erroneous.
    Appeal from the Superior Court of Cook county; the Hon, Sidney Smith, Judge, presiding.
    Opinion filed January 27, 1886.
    This action was case brought by Farwell & Co. against Flower, to recover damages for fraud and deceit in the purchase by the latter of certain.hills of goods, of the former. The first count of the declaration alleges a pretended purchase by defendant of plaintiffs of said goods, with the fraudulent design on defendant’s part of not paying for said goods, and of cheating and defrauding pla.intiffs out of the same. The second alleges that the goods were obtained by defendant by means of false and fraudulent representations as to his financial ability, and with the like design. The plea was not guilty. On the trial, the plaintiffs introduced testimony tending to show that August 15,1883, the defendant made, at plaintiff’s store, a statement in writing, to the effect that his then stock of merchandise, notes and accounts amounted to $9,000 ; that his cash on hand was $100 ; that his property was insured for §5,000; that he owed not to exceed §2,000 ; that since said date he had bought of plaintiffs goods to the amount of about §1,800 on credit, which had been paid for ; that February 21, 1884, defendant bought on credit a bill of goods amounting to §305.52; one March 4th, 1884, amounting to §3; one March 5,1884, to §6.22; one March 10, 1884, to §15.68; amounting in all to §419.97, which he had not paid. The court permitted plaintiffs, against the objections of defendant, to introduce in evidence a letter written by defendant Dec. 31, 1883, to one Brombach, containing certain statements as to his, financial condition. There was no evidence which even tended to prove that the representations made by defendant in the written statement of Aug. 15, 1883, were any of them false ; nor that those in said letter were false, or to connect said letter with any scheme on the part of defendant affecting the plaintiffs, or that the statements of the letter were connected with any fraudulent purpose. The only evidence tending to prove that the purchases in February and March, 1884, were fraudulent, was that March 21 and 24, 1884, several judgments by confession were entered up against him, and that about that time he failed in business.
    The court instructed the jury for plaintiffs in these words: “If a merchant buys goods upon credit without intending to pay for them, this is a fraud upon the seller and will entitle him to avoid the contract of sale, and sue for the value of such goods in an action based on such fraud. If, therefore, the jury believe from the evidence that he obtained such goods upon credit and without intending to pay for the same, then your verdict should be for the plaintiffs, for the value of said goods.”
    The jury found the defendant guilty and assessed plaintiffs’ damages at §419.77 for which they had judgment and defendant brings the record here for revision.
    Messrs. Moses, FTEwmn & Reed, for appellant;
    cited Johnson v. Beeney, 5 Bradwell, 601; Simpkins v. Berggren, 2 Bradwell, 101; Murphy v. Brace, 23 Barb. 561.
    As to instructions: Hanchett v. Mansfield, 16 Bradwell, 409 ; Catlin v. Warren, 16 Bradwell, 418.

      Messrs. Flower, Eemy & Gregory, for appellees;
    that if a purchaser knows himself to be insolvent and has no reasonable expectation of paying for the goods, it is sufficient evidence of fraud to avoid the sale, cited Davis v. Stewart, 8 Fed. Rep. 803; Talcott v. Henderson, 31 Ohio St. 162; Powell v. Bradlee, 9 Gill & J. 220.
   McAllister, J.

In the leading cases of Pasley v. Freeman, 3 Term R. 51, and Haycraft v. Creasy, 2 East, 92, the doctrine was clearly enunciated that in order to recover damages on the ground of fraud, mere legal fraud was not sufficient; that moral fraud or dishonest intention was indispensable. But it seems that after those decisions some of the English courts drifted away from their principles and they were lost sight of or obscured by various theories respecting what constituted frauds in the sense that it would invalidate sales of goods or afford the basis of an action for damages, so that mere fraud in law, without moral fraud, had come to be regarded as sufficient for either purpose. But both the Exchequer Chamber and Queen’s Bench have at length gone back and anchored upon the principles of the above cases, and it is now settled that mere legal fraud will not afford ground for invalidating contracts for the sale of goods, or for maintaining an action for damages; that there must be moral fraud or dishonest intention. Collins v. Evans, 5 Adol. & El. (N. S.) 820; Bailey v. Waiford, 9 Id. 197; Ormund v. Huth, 14 Mees. & Welsb. 651; 2 Smith’s Leading Cases, 105-6.

Mr. Benjamin, in speaking of the remedies of vendors of goods, says: “ JSText, it is now settled that there can be no fraud without dishonest intention—no such fraud as was formerly termed a legal fraud” Benj. on Sales, 2d Am. Ed. § 429.

So far as the doctrine has received full consideration and may be deemed settled in this State, it is entirely in harmony with that view. The case of Henshaw v. Bryant, 4 Scam. 106, was the first of that class. It is there stated to be this: “When a person who knows himself to be insolvent, by means of fraudulent pretenses or representations, obtains possession of goods under a pretense of purchase, with the intention not to pay for them but with the design to cheat the vendor out of them, a court of chancery will set aside the sale and order a return of the goods if they have not passed into the hands of a tona fide purchaser, or the vendor may bring replevin or trover for them.” That statement of the law was expressly re-affirmed in Patton v. Campbell, 70 Ill. 75.

We may readily concede that this statement of the law by our Supreme Court embraces one element as a necessary requisite, which is held by a preponderance of the authorities outside this State not to be necessary, viz., that in addition to the intention not to pay for the goods and design to cheat the vendor, there should be fraudulent representations by the buyer. But the necessity of such false representations, or some trick or artifice capable of proof, is held by several courts to be imperative. Smith v. Smith, 21 Penn. 367; Backentoss v. Speicher, 31 Id. 324; Bell v. Ellis, 33 Cal. 620; per Sheldon, J., in Nichols v. Piner, 18 N. Y. 295.

As opposed to that view, see Shipman v. Seymour, 40 Mich. 283; Stewart v. Emerson, 52 N. H. 301; Donaldson v. Farwell, 93 U. S. 631. These cases go upon the theory that a preconceived design never to pay, which involves a positive design to cheat and defraud, or known insolvency, with the intention not to pay for the goods, and the fraudulent concealment of that intention from the seller, are sufficient; and we agree with that conclusion. But eliminating that element from the statement of the law, in Henshaw v. Bryant, and Patton v. Campbell, supra, then the rule is, that when a person obtains goods, under the pretense of a purchase, with the intention not to pay for them, but with the design to cheat the vendor out of them, this would be such a fraud as would invalidate the sale, and lay the foundation for an action at law.

That is precisely what the plaintiffs below have averred in the first count of their declaration. The second count is upon fraudulent representations; but there was no evidence tending to support it, sufficient to be submitted to the jury. Although there was some slight evidence tending to support the first count, yet it was so slight and unsatisfactory, that any inaccuracy in plaintiffs’ instructions, calculated to mislead the jury, will be regarded as fatal. One of their instructions was, that “ If a merchant buys goods on credit without intending to pay for them, this is a fraud upon the seller and will entitle him to avoid the contract of sale and sue for the value of the goods, in an action based on such 'fraud ; that if the jury believe from the evidence that defendant obtained such goods upon credit without intending to pay for them, then their verdict should be for plaintiffs.”

It will be perceived that this instruction makes no reference to the question whether the purchase was made with the intention to cheat the plaintiffs out of their goods, which is expressly averred in their declaration, or to the insolvency of the defendant, and knowing it, the purchase with intention not to pay, and the fraudulent concealment of that intention from the plaintiffs. There is nothing of the kind; but the mere absence of any intention is, by it, declared to be a fraud as matter of law. If this instruction should receive the sanction of the courts, then it would be available in supplying the want of evidence tending to prove a fraudulent intent, at the time of a purchase, and enable the sellers of goods upon credit, where the buyers have failed, to turn nearly every action for the collection of such debts into an action on the case for fraud, and thereby defeat the beneficent purposes of that provision of the constitution which abolishes imprisonment fur debt.

In Catlin v. Warren, 16 Bradwell, 418, we held just such an instruction bad. At the time that case was heard, that of Hanchett v. Mansfield, Id. 407, was also submitted. The counsel for appellees in this present case were counsel in both those cases. " In the latter they were on the other side of the question involved here, and cited the case of Burrill v. Stevens, 73 Maine, 395, to sustain the proposition that there must be a positive design on the part of the buyer, at the time of the sale, not to pay for the goods. We adopted that view, citing Burrill v. Stevens, and decided the case in their favor. But they also cited the same case in Catlin v. Warren, where they were endeavoring to support an instruction given at their instance, the same as that in this present case. We followed Burrill v. Stevens, and other cases, and decided Catlin v. Warren, against them. The counsel now quarrel with that decision, and speaking of the case from 73 Maine, they say : “ It is sufficient to say that it has been expressly and repeatedly repudiated by courts of the highest authority.”

If the learned counsel had succeeded in making that statement good by citations, and shown that they had found out about tha.t repudiation since they urged it upon our attention in the cases referred to, we frankly say that while we would have been surprised at the discovery, it would have materially added to the high respect we already entertained for them. But they failed to find and cite any case which expressly or indirectly refers to that of Burrill v. Stevens, or any which are in any material degree in conflict with it. They take the position that a positive intention never to pay is not necessary ; and to sustain the instruction they must take that position ; and that a dishonest intention, in fact, is not essential. In the cases cited by them they seem to have wholly overlooked the distinction between the evidence to prove and the ultimate legal fact.to be proven. For instance, to show that no actual or positive intention on the part of the buyer to cheat is necessary, they cite Talcott v. Henderson, 31 Ohio St. 162. The court sums up its views by these words: “ While, therefore, a purchase of goods by an insolvent vendee, who conceals his insolvency with intent to injure the vendor, is fraudulent and voidable, yet a purchase under like circumstances, save only that suck, intent is absent, is not in law, fraudulent.”

Johnson v. Morrell, 2 Keyes, 665, is another case cited by them to prove that no actual or positive intent to injure or defraud is necessary. Peckam, J., says: “To avoid tho sale as fraudulent, the jury must be satisfied byproof that the purchaser intended by the purchase, to defraud the vendor ; that he never intended to pay for the goods.”

The case of Allen v. Hartfield, 76 Ill. 358, is cited to sustain the instructions. That case is so plainly distinguishable upon its facts, from this, that it is not deemed our duty to go into an analysis of it. There is a principle involved in this case so important that it should not he permitted to he obscured or overthrown by the loose dicta of any judges, however eminent. We are of opinion that the instruction was erroneous and misleading; and also that the court erred in admitting in evidence, against the defendant’s objections, the letter of defendant to Brombach. If there, had been evidence tending to show that he had defrauded both Brombach and the plaintiffs, and that the two acts or transactions were in pursuance of a common scheme embracing both, then the letter, if it was proposed to follow it up, by showing that defendant thereby defrauded Brombach, would have been admissible. But the case is entirely wanting in any such proof, so the letter was not admissible. Jordon v. Osgood, 109 Mass. 457.

The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Bailey, P. J.

text:
    George G. Fortier et al. v. The Pennsylvania Company.
    .1. Common carrier—Receipt of goods marked beyond line.—The receipt for transportation by a railroad company, of goods marked for a particular place, is to be construed prima facie as a contract to carry and deliver the same at the place for which they are marked, though beyond the terminus of its line.
    2. Limitation.—The company may, by express contract, limit its obligation to carry the goods to its own line or to points reached by its own carriage, and for safe storage and delivery to the next carrier in the route to the place of destination, and a clause in the receipt given to the owner for the goods, restricting the company’s obligations in this respect, if understandingly assented tó by the shipper, will as effectually bind him as though he had signed it.
    8. Same.—The limitation must be an affirmative one and the burden is on the company to show it. Held, that the alleged limitation as to distance, in the receipt in this case, is void for uncertainty.

      Appeal from the Superior Court of Cook county. lion. Sidney Smith, Judge, presiding.
    Opinion filed January 27, 1886.
    This was an action of assumpsit, brought by George G. Fortier and Eustace F. Bucke, co-partners under the name of Fortier & Bucke, against the Pennsylvania Company, as a common carrier, for the breach of two contracts, one for the transportation of fifty-two barrels and the other of sixty-four barrels of carbon oil, from Cleveland, Ohio, to Brandon, Manitoba. The first consignment was shipped May 5, and the other July 31, 1882. In case of each shipment a receipt or bill of lading was executed by the defendant’s agent at Cleveland, and delivered to the plaintiffs, on the first of which the oil was marked and consigned as follows: “ G. G. Fortier, Brandon, Manitoba, care Canada Pacific it. E.and on the second it was consigned as follows: “ Fortier & Bucke, Brandon, Manitoba, care P. E. E.” In other respects the two papers were identical, and were as follows:
    “Eeceived of Forest City Oil Co. by the Penn’a Co. Eailroad, the following property in apparent good order (except as noted), marked and consigned as in the margin, which they agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, in like good order, the dangers incident to railroad transportation, loss or damage by fire, while at depots or stations, loss or damage of combustible articles by fire, while in transit, and unavoidable accident excepted, at -;— station, upon the payment of charges. The company further agree to forward the property to the place of destination as per margin, but are not to be held liable on account thereof, after the same shall be delivered as above. The company, however, guarantee the through rate of freight as designated below.
    CONDITIONS.

      “ The company do notagree to carry the property by any particular train nor in time for any particular market. * "x" * It is a part of this agreement that all other carriers transporting the property herein receipted for, as a part of the through line, shall he entitled to the benefit of all the exceptions and conditions above mentioned, and if a carrier by water, he is to be entitled to the further benefit of exception from loss or damage arising from collisions and all other dangers incident to lake and river navigation.”
    The defendant transported said oil to Chicago, the terminus of its line, and there delivered it to the Chicago, Milwaukee & St. Paul ¡Railway Company, to be carried to Brandon, Manitoba. The oil having never reached its destination and never having been delivered to the plaintiffs, this suit was brought against the defendant for non-performance of its contract as a common carrier. On the trial before the court without a jury, it was held that the defendant was not liable, and judgment was accordingly entered in its favor for costs. From that judgment the plaintiffs have appealed to this court.
    Messrs. ÍPeokham & Bieown, for appellants.
    Messrs. Willakd & Dkiggs, for appellee.
   Bailey, P. J.

By the rules of the common law, as expounded by the highest judicial tribunal of this State, the receipt for transportation by a railroad company of goods marked for a particular place, is to be construed prima facie as a contract to carry and deliver the same at the place for which they are marked, though beyond the terminus of its own line. But the company may by express contract limit its obligation to carry the goods to its own line or to points reached by its own carriages, and for safe storage and delivery to the next carrier in the route to the place of destination; and a clause in the receipt given to the owner for the goods, restricting the company’s obligations in this respect, if understandingly assented to by the shipper, will as effectually bind him as though he had signed it. Ill. Cent. R. R. Co. v. Copeland, 24 Ill. 332; Ill. Cent. R. R. Co. v. Johnson, 34 Id. 389 ; Ill. Cent. R. R. Co. v. Frankenberg, 54 Id. 88 ; C. & N. W. Ry. Co. v. Montfort. 60 Id. 176 ; U. S. Express Co. v. Haines, 67 Id. 137 ; C. & N. W. Ry. Co. v. N. L. Packet Co., 70 Id. 217; Field v. C. & R. I. R. R. Co., 71 Id. 458; Adams Express Co. v. Wilson, 81 Id. 339 ; Erie Railway Co. v. Wilcox, 84 Id. 239; Merchants’ Despatch Tr. Co. v. Kahn, 76 Id. 520; St. L. & I. M. R. R. Co. v. Larned, 103 Id. 293.

The contract in this case was made in the State of Ohio and it is therefore, upon well recognized principles, to he interpreted and enforced in conformity with the laws of that State. But in the absence of proof to the contrary, it will be presumed that the common law prevails in Ohio, and unless it is shown that the courts of that State differ from those of Illinois in their interpretation and exposition of the rules of the common law,, it will be presumed that the decisions of our own courts embody a correct exposition of the common law as it prevails in Ohio.

The defendant, to prove the law of Ohio, read in evidence the published reports of two decisions of the Supreme Court of that State, viz., Cincinnati, Hamilton & Dayton R. R. Co., etc. v. Pontius et al., 19 Ohio St. 221, and Little Miami R. R. Co. v. Washburn, 22 Id. 324. We have examined these cases with care and are unable to perceive that they are at all in conflict with the above mentioned rules of the common law as declared by our own Supreme Court.

In the first of said cases the plaintiff delivered to the defendant, a corporation owning and operating a line of railroad running from Cincinnati to Dayton, Ohio, and forming with the roads of other companies a continuous line to Hew York, certain goods to be transported from Cincinnati to Hew York. By the bill of lading the defendant expressly agreed to trans-. port said goods to the terminus of its line, and there deliver them to the agents of connecting companies or forwarding lines; and it was further stipulated that in ease of loss, detri.ment or damage to the property, whereby any legal liability should be incurred, that company alone should be answerable therefor, in whose actual custody it should be at the time the same should happen. The goods were promptly transported bv the defendant to the terminus of its line and there delivered to the agents of the connecting company, but owing to the negligence of one or all the other companies forming the through' line, the goods were not received at Hew York in +ime for the market., and so could not be sold at any price. The decision turned solely upon the construction to be given to the written agreement, and it was held that by its plain terms it was only a contract to carry the goods to Dayton, and that the defendant assumed the liability of a common carrier only to that extent. The rule above cited, that the receipt of the goods marked to a point beyond the defendant’s line was prima facie evidence of a contract to carry the goods to their ultimate destination, and the authorities, English and American, by which it is supported, were pressed upon the court by counsel, but the court expressly declined to decide that proposition, saying that, “if it be admitted that the consignment marks upon the goods are, in the absence of a contrary agreement, prima facie evidence of the distance they were to be carried, the answer in the present case is that there was such contrary agreement.”

In Little Miami R. R. Co. v. Washburn, the principle decided was, that a common carrier who undertakes to transport goods over the whole or any part of its own route, and then forward them to a designated destination beyond, is bound to transmit, with the delivery to the carrier next en route, all special instructions received by him from the consignor ; and in default thereof, in any material particular, to stand responsible for and make good, the loss to which such negligence shall have contributed. In that case, as in the other, there was an express agreement, limiting the undertaking of the carrier to the transportation of the goods to the terminus of its own line, and to forwarding them from that point to their place of destination by another carrier. The question of the nature and extent of his obligation, in the absence of an express agreement, did not arise and was not decided.

It thus appears that the evidence offered, entirely fails to show that the rules of the common law as held in Ohio, differ in the least from those laid down by our own Supreme Court. We must presume, then, that the law applicable to the questions under consideration prevailing in the two States are identical.

Applying the law to the facts in this case, Avliat AATas the nature and extent of the defendant’s undertaking ? By receiving for transportation the oil in question marked and consigned to Brandon, Manitoba, it, pn'ima facie, undertook to transport it to that place. Was its undertaking in this respect limited by an express agreement? By the bill of lading the defendant acknowledged the receipt of the oil marked and consigned as above stated, and agreed to deliver it Avith as reasonable dispatch as its business would permit, at ■- station. The blank was not filled in either bill of lading. If this Avas a limitation upon the distance the defendant undeitook by its, prima facie agreement to carry the oil, what Avas the limitation? At what point did the defendant stipulate that its liability as a common carrier should cease ? On this question the instrument is blank and therefore silent. The limitation must be an affirmative one, and the burden is on the defendant to show it. The one proved applies as well to any other station on the through line, or even to the terminal station to which the goods were c nsigned, as to Chicago, the terminus of the defendant’s road. In this respect the agreement is void for uncertainty, and furnishes conclusive evidence of an inteñtion on the part of the defendant, in filling out the printed blank form of its bills of lading, to abandon that part of it which contained the form for a limitation, upon the terms of its presumptive o v prima facie agreement.

We are of the opinion then, that, under the evidence, the defendant undertook to carry and deliver the oil at Brandon, Manitoba. This it failed to do, and as the loss of the oil is not. shown to have resulted from any of the causes excepted in the bill of lading, the defendant is liable to the plaintiffs for the loss. The finding of the court below was contrary to the evidence, and the judgment avüI therefore be íeversed and the cause remanded for a new trial.

Judgment reversed.


text:
    Caleb H. Booth v. Josephine C. Smith.
    Rescission of contract.—The court is of the opinion that under the circumstances of the case, the complainant was justified in rescinding her contract, and was entitled to repayment of her purchase money. The fact that complainant’s husband and agent, acting as treasurer of the corporation, disbursed some of the funds paid by complainant for. the stock in question, is not chargeable to complainant as an estoppel.
    Appeal from the' Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed January 27, 1886.
    The report of this case upon the former appeal contains a sufficient statement of the pleadings as they then stood, and of the facts as they then appeared from the record. Booth v. Smith, 15 Bradwell, 91. Subsequently the complainant amended her bill by averring that in respect to all the transactions in any way pertaining to the investment of money by Parsons, and the obtaining the $4,000 from the complainant, and the prosecution and manipulation of such scheme by Parsons, he, said Parsons, was acting as the authorized agent of defendant Booth, and in all his actings and doings in that behalf, he and Booth were in collusion to defraud the complainant of her money; that although by the hooks of the company, Booth appeared to he the owner of 386 shares of the capital stock of the company, said stock was issued to Booth without any consideration whatever, Kelly, to whom it was originally issued, being the mere agent of Booth and in collusion with him for like fraudulent purposes; that as soon as the complainant could or did ascertain the falsity of the representations made to her by Parsons, and the utter worthlessness of said mine and the stock of the company, she notified Parsons that she desired to rescind, and did rescind said contract or sale, and offered to surrender the stock purchased .from him and demanded a return of the money paid him therefor, and charged him with having defrauded her out of the same; that in reply to such offer to rescind he begged her to commence no proceedings in the matter, and he would endeavor to have said stock sold to some other person who would advance the necessary money to reimburse the complainant the full sum paid by her; that a few days afterward she renewed her demand for the return of her money, but had been unable to obtain it or any part of it; that she is and at all times has been ready and willing to return to Parsons or Booth all of said stock; that said corporation had long since ceased to do business and was hopelessly insolvent, and should be dissolved and its affairs wound up. By her amended bill the complainant prays for a decree dissolving the corporation and ordering Booth to repay her said sum of $4,000 and interest, and her damages by her sustained by reason of said fraudulent transaction.
    Booth answered the amended bill admitting that in the negotiation with the complainant or her agent, and in selling to her said stock in said corporation, Parsons was his authorized agent, but in other respects denying the equities of said bill.
    The cause was afterward heard on pleadings and proofs and a decree rendered finding the equities with the complainant, and finding that Booth, through his agent Parsons, made to the complainant the several representations in the bill alleged; that the complainant, relying upon said representations and believing them to be true, purchased said stock of Parsons and paid him therefor said sum of $4,000 ; that in said transaction Parsons was the agent of Booth; that said representations were false and that their falsity was known to Parsons, and that they were made by him to the complainant’s agent for the purpose of inducing the complainant to make said purchase, and that said representations and the obtaining of the complainant’s money by means thereof were a fraud upon her; that at the time of said negotiations the stock of said corporation was wholly worthless; that within a reasonable time, and as soon as the complainant ascertained that she had been defrauded in manner aforesaid, she offered to return to Parsons said stock and demanded of him a return of her money, which was refused; that the receiver heretofore appointed had settled and closed up the affairs of said corporation and had on hand §880.08, which he had paid into the hands of the clerk of the court. It was therefore decreed that the complainant recover of said Booth the sum of $3,111.92, with interest from the date of the decree, and that she have execution therefor; and it was further ordered that the complainant be paid out of the moneys in the hands of the clerk the sum of $868, upon her surrender to the clerk for the use of Booth, of the certificates of stock in her hands. From this decree defendant Booth has appealed to this court.
    Messrs. McConnell & Smith, for appellant.
    Messrs. Dent, Black & Cratty Bros., for appellee.
   Bailey, P. J.

As to several of the material facts found by the decree the evidence is conflicting, but we are inclined to the view that the conclusions reached by the court below are fairly warranted by the evidence.

The fact of Parson’s agency for Booth in all the matters involved in this controversy is, we think, established beyond any reasonab'e doubt. Booth expressly admits the agency in his answer to the amended bill, but seeks to limit it to the mere matter of the negotiation and sale to the complainant of the shares of stock in question, but Parson’s testimony— and he was the only witness who was examined on the subject—makes it very clear that he was Booth’s agent, having general charge of all his interests and business connected with the Western Indiana Coal Company.

It seems to be established beyond any reasonable controversy, that Parsons, prior to the sale of said stock to the complainant, made to Smith, the complainant’s husband and agent, the several representations set forth in the bill, substantially as therein alleged. They are sworn to positively by Smith, and in the main are admitted by Parsons, and Smith’s testimony is'corroborated, to some extent at least, by a memoran chi m which he testifies he made at the time, and read over to Parsons, and also by the testimony of two witnesses to whom Parsons sought to sell the same stock at about the same time, and to whom he made certain portions of the same representations.

We think the conclusion fairly deducible from the evidence, that the complainant or her agent relied upon said representations and was thereby induced to purchase said stock. Smith so testifies. He says: “ I went into the company upon the representations of Mr. Parsons. Without them I should not have gone in. If the real facts had been stated I should not have paid one cent. I had no other source of information. I had no experience as a miner.” It is said, however, that as Smith visited and inspected the mine before making the contract with Parsons, he sliou'd be deemed to have made the purchase upon his own judgment, and not in reliance upon Parson’s representations.

Smith admits that lie went to the mine with Parsons before signing the agreement, and was there abouP twenty minutes. But giving to that fact all the force to which it is properly entitled, it is clear that most, if not all the representations in question, related to matters which could not be known from sncli brief inspection of the mine. Especially is this so, when we consider the fact that Smith had had no experience in mining coal and could form very little, if any, just estimate from such an inspection of the productiveness of the mine, the cost of mining, the quality of the coal, or the sum which had already been expended in developing the mine. He could not have ascertained from such inspection whether the company was successfully operating its mine and paying its current expenses out of the product of the mine; or that the product of the mine could easily be increased to fifty tons per day, and that the mine would then be profitable ; or that the coal could be mined and placed on the cars at the mine at a cost of not to exceed §1.27 per ton ; or that said coal would bring in the market twenty-five cents per ton more than any Illinois coal; or that the stockholders of the company had "nvested in their plant and the purchase of their property the sum of §3,500. As to some of these matters an expert might, perhaps, have formed some judgment from a mere inspection of the mine, but one having no experience in mining would obviously be forced to seek other sources of information. Smith testifies that he made no examination of the company’s books, and in this he is not disputed. The legitimate inference from all the evidence is, that in these matters he relied solely upon Parsons’ representations.

But it is insisted that these representations were mere expressions of matters of opinion, and that even if false, they were not such misrepresentations as would justify a rescission of the contract. We think, however, that most, if not all of them, especially when viewed in the light of the attending circumstances, were representations of facts, upon which the complainant had a right to rely in entering into a contract for the purchase of said stock. Such clearly was the representation as to the amount of money which had already been invested in the business of the company. That was a fact upon which the value of the stock about to be purchased very largely depended. The same may be said of the representations as to the condition of the company’s business, whether profitable or otherwise. The representation as to the cost per ton of mining the coal and placing it on the cars at the mine, was clearly the statement of a fact derived from actual experience in operating the mine. If the mine had never been operated or, perhaps, if Parsons had never had any experience in operating it, such statement might have been deemed a mere expression of opinion. But when he is shown to have been engaged for some time in working the mine so as to have, presumably, in his possession all the data from which the precise fact as to the cost of mining might be deduced, the statement becomes a matter of fact upon which the complainant might properly rely, and not a mere expression of opinion. Upon analogous principles, it may be held that the representation as to the value and market price of the coal, was a statement of a fact and not an opinion.

The record very clearly shows that most of said representations were false. It was admitted by the defendant at the hearing that the coal from said mine, instead of being worth twenty-five cents per ton more than Illinois coal, was worth twenty-five cents per ton less, and that efforts to sell the same in the Chicago market in competition with other coal were unsuccessful. The evidence is uncontradicted that the cost of mining said coal and placing it on the cars at the mine, instead of being only §1.27, was in fact a little over §1.88 per ton. It is also proved beyond dispute that the mine, at the time said representations were made, instead of making a profit was running at a considerable loss, and the evidence seems to show that it was incapable of being operated except at a large loss. The evidence also seems to show very clearly that the representation as to the amount of money which had been invested in the mine was substantially untrue.

The evidence as to whether Parsons knew the falsity 'of these several representations at the time he made them, is in some respects quite conflicting, but the chancellor who tr'e 1 the case, and who saw and heard the witnesses, having decided this question adversely to the defendant, we do not feel justified in disturbing his finding. Parsons must be deem ad to have known the facts as to the amount of money he had invested in the company, and he does not attempt to deny such knowledge, but as to the productiveness of the m'ne, the expense of working it and the quality of the coal, he claims that at the time he made said representations he believed them to be true. Without attempting to analyze the evidence in detail, it is perhaps sufficient to, say, that he had then been operating the mine for a considerable time and had in his possession all the data upon which the truthfulness of his representations' depended. Furthermore, when he made the representations, he added, by way of emphasizing them, as Smith testifies, This is no guess work. Having had four years’ experience, I know what I am saying.”

In view of all the facts we are of the opinion that the complainant was justified in rescinding her purchase of the stock and demanding a return of the purchase money. It appears that very shortly after the purchase and as soon as she had learned the falsity of said representations, she notified Parsons of her election to rescind, and offered to 'surrender to him the stock and demanded a return of the money paid therefor. At Parsons’ earnest solicitation she delayed -proceeding, for a time to enable him to find another purchaser for the stock, but on his failure in that respect, she renewed her demand for a return of her money. Under these circumstances, it was pro per for the cojirt to decree a rescission of the contract and a repayment of the purchase money, and this, in substance, has been done.

It seems that after the purchase of said stock by the complainant, Smith, her agent was’elected and served.as a director and the treasurer of said corporation. It also appears that a portion of the money paid for the stock was in fact paid in to the company, and so came into Smith’s hands as treasurer, and was disbursed by him in that capacity; and it is argued that by reason of these facts the complainant should be estopped from making a claim for reimbursement from the defendant. We are unable to see in this any just ground for an application of the doctrine of estoppel. It is difficult to see how the acts of Smith as director and treasurer of the corporation were chargeable to the complainant. While acting in those capacities he was acting as the agent of a corporate body to which the complainant bore no relation except that of stockholder. While he may, in a sense, be said to have represented the complainant’s interests in the corporation the complainant had no legal control over and no legal responsibility for his acts as such officer.

But were this otherwise, no estoopel could arise from his acts prior to the discovery of the fraud, nor from his acts after its discovery, and the offer to rescind, and while he was continuing to act for the company at Parsons’ solicitation, to give him time to negotiate the complainant’s stock to some other party. When those negotiations failed, Smith seems to have ceased to act as an officer of "the corporation.

We think the decree was fairly justified by the evidence; and it will therefore be affirmed.

Decree affirmed.


author: Bailey P. J.

text:
      W. M. Darlington et al. v. Victor Fredenhagen, Jr.
    1. Action—Pleading.—In order to recover in assumpsit against an agent or factor for negligence or other breach of duty the declaration must be special. Where the promise or agreement is not for the payment of money, but for the doing of some other matter or tiling, the remedy for the breach is by action called a special assumpsit.
    2. Practice—Intendment after verdict.—Where the case presented is merely one of a party stating one cause of action in his declaration and endeavoring to prove a wholly different one at the trial, the rule as to intendments after verdict does not go so far as to hold that the failure of the defendant to object to the plaintiff’s evidence while it is being introduced estops him after verdict from insisting that the plaintiff has failed to prove his declaration.
    3. Principal and agent—Reasonable diligence required.—It is not the law that the agent or factor is bound by law to exercise the utmost care and diligence in the business of his principal. The extent of his duty *s to exercise reasonable care and diligence.
    Appeal from the Circuit Court of Cook county ; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed January 27, 1886.
    Messrs. Pedrick & Dawson, for appellants.
    Mr. John H. Batten, Jr., for appellee.
   Bailey P. J.

This was a suit in assumpsit, the declaration consisting only of the common counts. The defendants pleaded non-assumpsit and filed with their plea a notice of set-off, and at the trial before the court and a jury, the plaintiff, recovered a verdict and judgment for fifty dollars.

The evidence shows that in October, 1882, Fredenhagen, the plaintiff, consigned to the defendants, who were commission merchants in Chicago, two car loads of sheep and lambs and one hull, to be sold by them in the Chicago market. The plaintiff’s evidence tended to show that the number of sheep and lambs consigned were 180; but the evidence for the defendants shows very conclusively that only 162 were received by the defendants, one of which was dead. After the receipt of said consignment, the defendants advanced to the plaintiff the sum of §300 on account. The bull was sold for §39, and no question is made as to the fairness of that sale. The defendants, as their evidence seems to show, after repeated efforts to sell the sheep and iambs to the best advantage, succeeded in disposing of them for §242, so that the entire consignment, after deducting freight commissions, and other charges, produced the net sum of only $222.02, being $77.98 less than the sum advanced by the defendants to the plaintiff.

The money realized by the defendants for such property being thus less than paid to the plaintiff, the only theory upon which the plaintiff seems to have based his right to recover was, that the defendants were guilty of negligence or breach of duty as his agents or factors. By way of showing that the defendants failed to use reasonable care and diligence in disposing of his property to the best advantage, the plaintiff gave evidence tending to show that on the day on which the sheep and Iambs were sold, the current prices of the same grade of sheep and lambs in the Chicago market, was considerably higher than those obtained by the defendants. Beyond this there was no material evidence of negligence.

It is now urged that the verdict and judgment can not be sustained under the declaration. There can be no question that in order to recover in assumpsit against an agent or factor, for negligence or other breach of duty, the decoration must be special. The suit is not upon any promise or agreement, either express or implied, for the payment of money, but for the breach of an implied undertaking on the part of the defendants to use reasonable care and diligence in selling the plaintiff’s property in the market to the best advantage. Where the promise or agreement is not for the payment of money, but for the doing of some other matter or thing, the remedy for the breach is by action called a special assumpsit. Spratt v. McKinney, 1 Bibb, 595; Myers v. Schemp, 67 Ill. 469.

No objection was urged at the trial to the admission of the plaintiff’s evidence, and it is now insisted that the defect in the declaration is cured by verdict, or by force of the statute of amendments and jeofails. We are unable to see how the doctrine of intendments after veidict, either at common law or under the statute, can apply. There was no defect or omission in pleading, as the declaration stated with entire legal accuracy a good cause of action. The rule as to intendments after verdict is stated by Mr. Tidd as follows: “At common law, when anything is omitted in the declaration, though it be matter of substance, if it be such that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omissionshall not arrest the judgment.” 2 Tidd’s Practice, 919. Mr. Chitty, speaking of the same rule, says: “ The general principle upon which it depends appears to be that where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict.” 1 Chitty’s Plead. 705.

Nor do we think that the rule in its application to this case, is at all extended by the statute. That provides merely that judgment shall not be arrested or stayed after verdict for any mispleading or insufficient pleading. It needs no argument to show that a sufficient declaration upon which proper issues are taken, presents neither a case of insufficient pleading or mispleading.

The case then is merely one of a party stating one cause of action in his declaration, and endeavoring to prove a wholly different cause of action at the trial; and we are not aware that the rule has gone so far as to hold that the failure of the defendant to object to the plaintiff’s evidence while it is being introduced, estops him, after verdict, from insisting that the plaintiff has failed to prove his declaration. This the defendants did by their motion for a new trial on the ground that the verdict was against the evidence, and we think that for the reason above stated their motion should.have been granted.

The court, at the instance of the plaintiff, gave to the jury the following, among other instructions:

“ The jury are further instructed, that the law requires a factor or agent to exercise the utmost good faith, care and diligence toward his principal; and if he fails to do so, and any loss occurs by reason thereof, he will be liable for such loss to his principal.”

This instruction was manifestly erroneous. It is not the law that an agent or factor is bound by law to exercise the utmost care and diligence in the business of his principal. The extent of his duty is to exercise reasonable care and diligence. Story on Agency, Sec. 186 ; Phillips v. Moir, 69 Ill. 155 ; Deshler v. Beers, 32 Id. 368.

Other instructions were given, it is true, in which the rule was laid down correctly, but as they were in direct conflict with the one above recited, the error can not be deemed to have been thereby cured. The evidence in the question of the defendants’ care and diligence was conflicting, and the law should have been given to the jury with substantial accuracy. Instructions embodying propositions of law in conflict with each other could not have failed to mislead the jury.

For the foregoing errors the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Daniel Goldschmidt et al. v. Frank P. Berry, for use, etc.
    Replevin—Obtaining goods under false pretenses—No demand necessary.—A porson obtaining goods by fraudulent pretenses is guilty of a tortious taking, and no demand for possession is necessary to enable the person defrauded to maintain replevin for them unless they have passed to a third person, holding them ionct Jtde for a valuable consideration, without notice.

      Appeal from the County Court of Cook county; the Hon. Richard Prekdeiigast, Judge, presiding.
    Opinion filed January 27, 1886.
    Messrs McCoy, Pope & McCoy, for appellants.
    Messrs. Kraus, Mayer & Brackett, for ajipellce.
   Bailey, P. J.

This was debt on a replevin bond. It appears that on the 1st day of Hovember, 1881, Goldschmidt, Bachrach & Co., brought a replevin suit before a justice of the peace against John H. Graves, to recover possession of a quantity of kid gloves of the value, as shown by the affidavit in the replevin suit, of 8165. The suit was afterward dismissed on motion of Goldschmidt, Bachrach & Co., and a judgment was thereupon entered finding the right of possession of the property replevied in Graves, and awarding a writ of retorno kdbendo, and for costs and nominal damages. The property replevied not being returned, suit was brought on the repletan bond in the name of Berry, the constable, for the use of Graves, against Goldschmidt, Bachrach & Co., and Pardee, their surety on the bond. The defendants appeared and filed their pleas of nul tiel record and non est factum, and a plea, under the statute, in mitigation of damages, alleging that the merits of the case had not been determined in the trial of the replevin suit, and that the property replevied, at the time when, etc., was the property of Goldschmidt, Bachrach & Co., and not of said Graves. At the commencement of the trial the defendants withdrew all but the plea in mitigation of damages. The verdict of the jury was in favor of the plaintiff, assessing the debt at the penalty of the bond, and the plaintiff’s damages at 8195.71; and the court, after denying the defendants’ motion for a new trial, gave judgment on the verdict.

The defendants, before the cause was opened to the jury, asked to be permitted to open and close the case, which was refused, and the defendants, having preserved their exception, now assign said ruling for error. We think the plaintiff was entitled to open and close. The only question before the jury was as to the measure of damages, and of that question the plaintiff c1 early had the affirmative, and the burden of proof was on 1dm. True, nominal damages were admitted by the pleadings; and if no evidence had been offered, the plaintiff would have been entitled to recover such damages; but to recover substantial damages the plaintiff was obliged to establish the same by evidence, and that, too, before the defendants could be called upon to offer any evidence under their plea. The question is, which party would have succeeded if no evidence had been offered. Clearly the defendants. In the absence of evidence the plaintiff would have recovered only nominal damages, and the entire defense made by the plea would have been established.

The defendants, to show that said gloves were the property of Goldschmidt, Bachrach & Co., and not of Graves, gave evidence tending to show that one Wells obtained them of Goldschmidt, Bachrach & Co., on credit, by means of false and fraudulent representations as to his financial circumstances and ability - that Graves purchased them of Wells with knowledge of such fraud, and that Goldschmidt, Bachrach & Co., as soon as the fraud was discovered by them, rescinded the sale and brought replevin to regain possession of the gloves. The evidence bearing upon the charge of fraud on the part of Wells, as well as that tending to charge Graves-with notice of the fraud, at the time he purchased of Wells, "was quite conflicting and not altogether satisfactory; and the jury having found those issues in favor of the plaintiff, we see no occasion for disturbing their verdict as being unsupported by the evidence.

The court, on his own motion, gave to the jury the following instruction:

“ The court instructs the jury that, if they believe from the evidence that the goods were purchased from the defendants by Wells, and that they were sold by defendants’ agent on representations made by Wells or by his agent acting for him in that regard, as to the financial ability or condition of Wells and that such representations wei e false and fraudulent, and known to be such by the person making them at the time, and that they were such representations as were calculated to deceive a person of ordinary or common prudence, and that the agent of defendants believed the representations to be true and relied upon them, and had no knowledge to the contrary, and that they were made for the purpose of deceiving and defrauding defendants, and if such representations were the inducement to defendants to part with the goods, then defendants had a right, as against Wells, to rescind and avoid the sale and reclaim the goods, which rescission and avoidance, to be effective, must be connected with a demand for a return of the goods prior to the commencement of the replevin suit.

“And in such case, if yoxi further believe from the evidence that Wells sold the goods to Graves, and that at the time of the sale to Graves, he, Graves, knew of the manner in which and the circumstances under which Wells received the goods from the defendants, or that he is not a bona fide purchaser of the same for value, then the defendants are entitled to avoid and rescind the first sale, as against Graves,- which must be evidenced in like manner by a demand on Graves.”

This instruction was erroneous in holding that, in order to rescind the contract of sale, either as to Wells, or as to Graves, it was incumbent upon the defendants, to make a demand for a return of the property. Such is not the law. Where a person acquires possession of property under a contract of sale, by means of false and fraudulent representations in respect to his solvency, and means of paying therefor, or other material circumstances affecting the contract, he acquires no title either of property or of possession, and the vendor may retake the property, using no more force than is necessary for that purpose; and if he be resisted by the vendee, he may still use such force as is necessary ; or the vendor may recover the goods in an action of replevin, or he may maintain trover for them, without any previous demaud, unless they have passed to a third person holding them bona fide for a valuable consideration, without notice. Story on Sales, Sec. 445 a. In Ayres v. Hewitt, 19 M. 281, it is held that a person obtaining goods by fraudulent pretenses is guilty of a tortious taking, and no demand is necessary to enable the person defrauded to maintain replevin. So, in Bussing v. Rice, 2 Cush. 48, it was held that where goods, which have been obtained by means of a fraudulent purchase, are seized under a warrant of insolvency, as the property of the buyer, the seller may maintain replevin therefor, against the messenger, without previous demand. Thurston v. Blanchard, 22 Pick. 18; Buffington v. Gerrish, 15 Mass. 156.

The same rule has been frequently laid down in this State. Thus, in Butters v. Haughwout, 42 Ill. 18, it is held that in replevin for the detention of goods, where the defendant obtained them unlawfully, proof of a demand by the true owner and a refusal to deliver them up is not necessary; and that if the defendant purchased the goods with knowledge that his vendor had obtained them by fraudulent means, then the possession of the defendant, as against the true owner, is unlawful and no demand is necessary. See also Ryan v. Brant, 42 Ill. 79; Bruner v. Dyball, Id. 34.

But in this case the question was not whether Goldschmidt, Bachrach & Co., had entitled themselves to the. specilic remedy of replevin, but merely as to the ownership of the property ; that is whether it belonged to the plaintiffs or the defendant in the replevin suit. The right tti maintain replevin, and thus obtain possession of the property replevied, was conclusively established hy the judgment in that suit. The title to the property only was put in issue by the plea. If Wells obtained the property by fraud, and if Graves purchased it with notice of the fraud, according to the hypothesis of the instruction, the title did not pass from Goldschmidt, Bachrach &. Co., and their election to rescind the contract of sale was sufficiently manifested by bringing the replevin suit. As no note had been given for the goods and no portion of the purchase money had been paid, they had nothing to restore to Wells or Graves, and nothing was necessary to consummate the rescission but notice of their election to rescind, and the commencement of the replevin Suit was all the notice required. Sumner v. Waugh, 56 Ill. 531; Smith v. Smith, 19 Id. 349; Herrington v. Hubbard, 1 Scam. 569.

It is suggested that the instruction, though erroneous, could have wrought no injury to the defendants, for the reason that a demand was fully and conclusively established. If the evidence on that point had been clear and uncontradicted, we should readily adopt that view, hut such does not seem to he the case. One witness only testified to a demand, hut his testimony on cross-examination was so confused and contradictory that we can .not say that a demand was proved or that the jury would not have been warranted in disbelieving his evidence on that question.

Other questions are raised in argument which we need not consider, hut for the error in said instruction above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    George T. Lovejoy, Impl'd, etc. v. Edward T. Steele, Assignee, etc.
    1. Actioh of debt on bond.—An action of debt for the penalt.v'of a bond is strictly a legal action brought to enforce a legal right. The penalty is one entire thing and can only be claimed by the obligee in the bond or his legal representative.
    2. Suit bbought by assignee’s succersob.—Where the bond in suit run to “Leonard Klink, assignee, etc., for the use of W. H. Sisson,” and Klink, the’sole obligee, having died, appellee, who was not Klink’s administrator, brought suit on the bond, basing his right to maintain such suit solely upon the circumstance that Klink was the assignee in bankruptcy of the estate of one Butters, and that after his decease appellee was appointed in liis place. Held, that the action was not properly brought in appellee’s name, since the judgment in justice’s court in respect to which the appeal bond was given was recovered by Klink after he became assignee, and because from what appears upon the face of the declaration as well as by the evidence, neither the judgment nor the amount of it, had it been collected, belonged to the estate of the bankrupt and could not have been regarded as assets.
    Appeal from the Superior Court of Cook county; the lion. Sidney Smith, Judge, presiding.
    Opinion filed February 3, 1886.

      This was debt upon an appeal bond brought by Edward T. Stelle, for the use of William H. Sisson against George T. Lovejoy, impleaded with Hebron Clafiin. Breaches were assigned, to which several pleas were pleaded. Upon the trial by jury, the court, by peremptory instruction, directed the jury to find for plaintiff, debt three hundred dollars, and damages two hundred and seventy-five dollars and fifty-nine cents, for which judgment was given, and Lovejoy appealed to this court. It appears from the record, that January 19, 1871-, Leonard G. Klink was appointed by the United States District Court, assignee in bankruptcy of the estate of W. A. & W. H. Butters, and deed of assignment then made; that afterward, June 10, 1875, Klink sued said Clafiin in justice’s court for the use of Wesley II. Sisson, and secured judgment for one hundred and seventy-four dollars in his, Kiink’s name, for use of said Sisson against Clafiin; that the hitter appealed to the circuit court, and executed, with Lovejoy as surety, the bond in suit, bearing date June ‘23, 1875, in the penal sum of three hundred and sixty dollars, running to “ Leonard Klink, assignee, etc., for use of Wesley H. Sisson,” and in the condition, the justice's judgment is described as having been in favor of Klink, for the use of Wesley II. Sisson. It appears that Kovember 21, 1876, said appeal was dismissed in the circuit court; that December 2, 1877, said Klink died, and that May 13, 1878, Edward T. Stelle was appointed by the district court, assignee in bankruptcy of the estate of said Butters in place of Klink, and brought this suit upon said bond as such assignee, for the use of William II. Sisson ; that when the bond was offered in evidence, the defendants objected to it on the ground that the suit was not brought in the name of the right party. The objection was overruled and exception taken. The evidence as well as the dec’aration, showed that the justice’s judgment did not belong to the estate of the bankrupts, and that the money, if it were collected, would not be an asset.
    Messrs. C. C. & C. L. Bonnet and Mr. Lyman M. Paine, for appellant.

      Mr. E. P. Plan j hard, for appellee.
   McAllister, J.

It is a general rule that an action at law upon a contract must be brought in the name of the party in whom the legal interest in the contract is vested. Dix. for use, etc. v. Mercantile Ins. Co., 22 Ill. 272; Larned v. Carpenter, 65 Ill. 543. A.n action of debt for the penalty of a bond is strictly a legal action brought to enforce a legal right. The penalty is one entire thing and can only be claimed by the obligee in the bond or his legal representatives. Sanders v. Filley, 12 Pick. 544.

The question in this case is whether the action upon the bond was properly brought in the name of Stelle, the obligee, Klink, having died. Klink was the sole obligee and Stelle was not the administrator of his estate. The legal right of Stelle to maintain the action upon the bond is based solely upon the circumstances that Klink was the assignee in bankruptcy of the estate of Butters, and that after his decease Stelle was appointed in his place.

We are of opinion that the action was not properly brought and could not be maintained by and in the name of Stelle as the successor of Klink as aforesaid. First, because the judgment in justice’s court, in respect of which the appeal bond in question was given, was recovered by Klink after he became assignee, and secondly, because from what appears upon the face of the declaration, as well as by the evidence, neither the judgment nor the amount of it, had it been collected, belonged to the estate of the bankrupts and could not be regarded as assets. If, therefore, Klink had brought an action upon the bond in his lifetime the law would have required him to bring it in his own right, and not in his representative character as assignee. That being the case the only proper party to bring the action after Klink’s decease is the administrator of his personal estate. We regard these views as fully supported by the settled principles of analogous cases. Betts v. Mitchell, 10 Md. 316; Hosier v. Arundell, 3 Bos. & Pul. 7 ; Adams v. Campbell, 4 Vermt. 447; Kline v. Guthart, 2 Penrose & W. 490, opinion by Gibson, C. J.; White v. Joy, 13 N. Y. 83; Austin v. Munroe, 47 N. Y. 360. For the reason stated the judgment of the court below will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.