text:
    John N. Powers v. City of Chicago.
    1. Motion to exclude plaintiff's evidence.—A motion to exclude the plaintiff’s evidence from the jury when he rests his case, is in the nature of and to be regarded as of the same effect as a demurrer to the evidence. The defendant thereby admits all that the evidence tends to prove and every legitimate reference which can be drawn from it.
    2. Same—Negligence.—An action on the case by plaintiff against defendant city to recover damages for a personal injury. Plaintiff, while going to his dwelling, which abutted on a public street of the city, and while, as he claimed, in the exercise of reasonable care, slipped and fell, fracturing his thigh bone. It was alleged that the injury was caused by reason of the negligence of defendant, its agents and servants, in permitting one of its Are plugs, locatednear plaintiff’s premises, to discharge large quantities of water in cold, freezing weather, which mixed with the snow and formed ridges of ice, rendering the street and the ingress to plaintiff’s premises bad and dangerous, of which defendant had notice before said injury. Held, that under the evidence, as presented in this case, it was error for the court to grant the motion to exclude all of plaintiff’s evidence and thus withdraw the case from the jury.

      3. Notice of obstruction.—Whether an obstruction in the public highway has existed a sufficient time to imply notice to the city or not is a question which depends upon the circumstances of each particular case.
    4. Practice—Evidence.—Where the court rules out successive preliminary questions and prevents a party from gaining an entrance upon a legitimate inquiry, it is denying to such party a substantial right and is prejudicial error.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed August 6, 1886.
    This was an action by Powers against the city of Chicago, to recover damages for a personal injury, viz., the fracturing of his thigh hone, by slipping and falling while going to his dwelling house, abutting upon a public street of said city called Haynes Court, and while, as he claimed, he was in the exercise of reasonable care, by reason, as it was alleged, of the negligence of defendant, its agents and servants, in permitting a certain fire plug of defendant, located near to plaintiff’s premises, to discharge divers large quantities of water, in cold freezing weather, upon said street, so that by mixing with the snow and freezing, ridges or hammocks of ice were formed, which rendered said street or way and the ingress to plaintiff’s premises bad and dangerous, of which the defendant had notice before said injury.
    On the trial before a jury, under the plea of general issue, the plaintiff gave and introduced evidence, fairly and substantially tending to support the allegations of his declaration as respected the bad and unsafe condition of said street at and near the approach to his dwelling, and to show no want of ordinary care on his part to avoid being injured; also, that said street had been in such condition for about thirty-six hours prior to the accident, which occurred about four o’clock in the morning, February 21,1883, in front and near to plaintiff’s house, to which he was then returning, after having spent the night watching with the corpse of a deceased friend. The evidence tended to show that the ice was formed from water which had been permitted to flow from a city water plug located near the place and that the street there was, in point of fact, in a bad and dangerous condition by reason thereof. The plaintiff called as a witness, the city engineer, and he testified that as such engineer he had charge of the fire hydrants in the city. He was then asked by plaintiff’s counsel to state what was the practice in reference to opening fire hydrants during cold weather. To this defendant’s counsel objected generally, the court sustained the objection, and plaintiff excepted. Witness was then asked by plaintiff’s counsel: “Do you, as city engineer, give any instructions in regard to the management and control of fire plugs?” Hpon objection by defendant this was likewise ruled out, and plaintiff excepted. Plaintiff’s counsel then asked : “Have you ever given any instructions as to opening fire hydrants during cold weather on Haynes Court?” Hpon objection by defendant that question was excluded and plaintiff excepted. Plaintiff introduced evidence tending to show that agents of the water department of the city, acting under the directions of the foreman or superintendent of that department, inspected each fire plug in the city every day in cold freezing weather.
    The plaintiff, having givenevidence tending to show the character of his injury, rested his case; whereupon the defendant’s counsel moved the court to exclude all of plaintiff’s evidence. The motion was granted, a verdict was returned in favor of defendant, on which judgment passed, and for costs, against plaintiff, who prosecutes this appeal.
    Mr. F. P. Read, for appellant;
    that no notice of the existence of the obstruction in the highway was required because’ it was caused or created by the act of the city itself, cited Lloyd v. Mayor, 1 Seld. (N. Y.) 369; Grant v. City of Brooklyn, 41 Barb. 381; City of Chicago v. Johnson, 53 Ill. 91; Brooks v. Somerville, 106 Mass. 271; Holmes v. Paris, 75 Me. 559; Grimes v. Keene, 52 N. H. 330; Dillon on Municipal Corporations, § 1024.
    As to whether the obstruction had existed a sufficient length of time to warrant a presumption of notice, was a question for the consideration of the jury under all the circumstances of the case: City of Chicago v. McCulloch, 10 Brad-well, 459; City of Chicago v. Dignan, 14 Bradwell, 136; City of Chicago v. Fowler, 60 Ill. 332; City of Sterling v. Thomas, 60 Ill. 260; Home v. City of Lowell, 101 Mass. 99.
    As to the court directing a verdict for defendant: Simmons v. C. & T. R. R. Co., 110 Ill. 340; Todd v. City of Troy, 61 N. Y. 506; Railroad Co. v. Stout, 17 Wall. 657.
    Mr. Hempstead Washburne and Mr. Clarence A. Knight, for appellee;
    that appellant was not in the exercise of ordinary care, cited City of Centrada v. Krouse, 64 Ill. 19; Beach on Contributory Negligence, 256; City of Macomb v. Smithers, 6 Bradwell, 473; City of Quincy v. Barker, 81 Ill. 300.
   McAllister, J.

The motion to exclude the plaintiff’s evidence from the jury when he rested his case, was in the nature of and to be regarded as of the same effect as a demurrer to the evidence. Phillips v. Dickerson, 85 Ill. 15.

The defendant thereby admitted all that the evidence tended to prove, and every legitimate inference which could be drawn from it. 85 Ill., supra.

The evidence preserved by the bill of exceptions, and which the court excluded by such motion, fairly tended to prove that the street and sidewalk, at the place in question, was in a bad and dangerous condition, not as a result of prevailing storms, but by reason of the flowing of ' water from- a fire plug of the city, which could have been prevented by the exercise of reasonable care and diligence on the part of the municipal authorities, or as the result of acts of positive misfeasance by defendant’s agents and servants. In such case, the defendant, if it had notice of the flowing of water and the obstructions, and neglected to abate the nuisance within a reasonable time, or the nuisance was caused by acts of misfeasance of its agents or servants acting within the scope of their authority, would be liable, upon well settled principles of law, to the plaintiff, if injured while in the exercise of ordinary care and as a proximate consequence of such obstructions. Cooley on Torts, 625, and cases in notes.

One of the grounds assigned by the court for granting the motion to exclude all of plaintiff’s evidence, was that the obstructions had not existed a sufficient time to imply notice to the defendant.

As regards such question, every case must depend upon its own circumstances. In City of Chicago v. Fowler, 60 Ill. 322, the obstruction had existed but little longer than in this case, and the court, regarding the special circumstances, held it was a question for the jury, and their finding that there was notice, was conclusive. In the case at bar, the evidence tended to show that an agent of the city visited this fire plug every day during the cold weather, such as there was at the time in question. That was evidence to go to the jury upon the question of notice. Besides, the plaintiff endeavored to prove by the city engineer having the matter in charge, knowledge on his part, as chief of a department, as to what had been ordered and done with reference to the particular fire plug in question. To that end three successive preliminary questions were asked and each ruled out, so that plaintiff could get no starting point as to an inquiry which was material, legitimate, and which he had an undoubted right to make for the purpose of showing notice to defendant. Where the court thus rules out successive preliminary questions, and prevents a party from gaining an entrance upon a legitimate inquiry, it is denying to such party a substantial right, and is prejudicial error. Walker v. Chicago, 58 Ill. 280 ; Mably v. Irwin, 16 Bradwell, 362.

The evidence preserved in the record tended to prove the exercise of ordinary care on the part of the plaintiff, so that the question should have been submitted to the jury, and the court was not justified in excluding the whole evidence and thus withdrawing the case from the jury on the ground of contributory negligence on the part of plaintiff. It was not negligence per se for him to attempt, with due care, to go to his house over the icy way, there being no other way of getting to his house at that time which was reasonably available. Evans v. City of Utica, 69 N. Y. 166; Congdon v. The City of Norwich, 37 Conn. 414; Thompson on Negligence, 785-6.

It seems to us that there was evidence tending, in a substantial degree, to prove every element necessary to a cause of action. However that may be, the rulings of the court upon the several questions asked by plaintiff’s counsel were erroneous. We think the plaintiff did not have a fair trial, and that a new trial should be granted.

The counsel for the city take the position that the plaintiff is remediless on this appeal, because the bill of exceptions does not expressly purport to contain all the evidence. Whether it did so purport or not, is wholly immaterial as regards the question of the improper exclusion of evidence. But it does purport to contain all the evidence reached by the motion to exclude, which is to be treated as a demurrer to evidence, and tested by the same rales. The judgment below will he reversed and the cause remanded for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    In the Matter of the Will of Wilbur F. Storey.
    1. Change oe venue—Naming judge.—Where the order changing the venue from a judge of the Circuit Court of Cook county, designated a particular judge of such court as the judge to whom the case was to go for trial, and the case was tried by another judge of such court, held, that the inserting in the order changing the venue, of the name of a judge to try the cause, was entirely unauthorized and must be treated as mere surplusage (R. S. Ch. 146, § 2); that any judge of the court to whom the causes for a change of venue did not apply would have full power and authority to try the case.
    2. Proceedings to probate a will—Appeal.—In proceedings to probate a will in the probate court there are no parties. The judgment is in rem, and unless appealed from is binding on the whole world. On an ap. peal to the circuit court by any party interested, the judgment entered by that court is a judgment in rem. On the trial, those who seek to have the will admitted to probate become proponents, and those who oppose it become contestants. No one can withdraw the cause or stop the proceedings against the objection of any person, on the one side or the other of the issue, who is interested in having the question determined by the court.
    8. Same.—A died October 27, 1884, and on December 5, 1884, there was presented to the Probate Court of Cook county, by the widow of A, a petii tion, stating that said A left a last will, which was dated February 1,1881, in which said widow was named as executrix; that he left real and personal estate in Cook county, and that he left surviving him his said widow and a brother, sister, nephew and niece, his only surviving heirs at law, and praying that said will be admitted to probate. On a day fixed by the court the testimony of the subscribing witnesses to the will was heard, and such testimony being that A was not, at the time of making said will, of sound mind and memory, the court refused to admit the will to probate. From this order two appeals were prayed to the circuit court, one by the widow, who filed her appeal bond December 2, 1881, but did not file a transcript for some time thereafter, and one by the sister, who perfected her appeal by filing a transcript, December 5, 18§4. The widow afterward dismissed her appeal and moved the court to dismiss the appeal of the sister, which motion the court denied. The appeal of the sister came on for trial'. Held, that on such trial the co-urt properly-regarded the widow, who was seeking to have probate allowed, as the proponent of the will, and her counsel were properly given the conduct of proponent’s side of the issue ; that the refusal of the court to allow the sister, whose interest appeared to- be that no will should be established, to dismiss the appeal, was proper.
    4. Mental capacity.—The court is of opinion that the clear preponderance of the evidence in this case supports the finding of the court below that the testator was, at the time of the execution of the will in question, of sound and disposing mind and memory.
    5. Execution op will.—No declaration by the testator that the paper is his will is necessary, nor need the witness know that, he is attesting a will, nor is it necessary that the testator should actually see the witnesses sign if he is in such position when they sign that he could see them if he chose so to do. The court is of opinion that under the evidence in this case the execution of the will was duly proved.
    6. Cross-examination.—Evidence as to ebaud, compulsion, etc.— Appellant’s counsel can not assign for error that he was not permitted on cross-examination of the subscribing witnesses to go into the evidence showing fraud, compulsion or improper conduct. The court below permitted full cross-examination as to everything which took place at the time of the signing of the will by the testator, and at the time of the signing by the witnesses, and that was the proper extent of the cross-examination; and evidence of facts occurring at other times tending to prove such fraud, compulsion or improper practice, was in the nature of affirmative evidence and should be offered when contestants came to make their case.
    7. Fraud to avoid a will.—Fraud to avoid a will must be directly connected with the execution of the will, and must be such as to deprive the testator of his free agency. The advice or even persuasion of a wife, to induce a will in her favor, is lawful. Weakness and opportunity for fraud qr undue influence do not prove that the one has been perpetrated or the other exercised.
    8. Evidence—Reviewing court.—Admissibility of the evidence will be considered by a reviewing court only on the ground on which it was offered by counsel in the court below.

      Appeal from the Circuit Court of Cook county; the Hon. John G-. Rogeks, Judge, presiding.
    Opinion filed August 6, 1886.
    Wilbur F. Storey died October 27, 1884, and on December 6, 1884, there was presented to the Probate Court of Cook county, by Eureka C. Storey, his widow, a petition stating that said Wilbur F. Storey left a last will, which was dated February 1, 1881, in which she, said Eureka C. Storey, was named as executrix; that he left real and personal estate in Cook county, and that he left surviving him his said widow, and his brother, Anson L. Storey, his sister, Mary E. Farrand, his nephew, Edwin P. Chapin, and his niece, Mary E. Anderson, his only surviving heirs at law, and praying that said will be admitted to probate.
    On a day fixed by the probate court the testimony of the subscribing witnesses to the will was heard, and such testimony being that said Wilbur F. Storey was not, at the time of making said will, of sound mind and memory, the court refused to admit the will to probate. From "this order two appeals were prayed to the circuit court, one by Mrs. Storey, who filed her appeal bond Dec. 2, 1884, but did not file a transcript for some time thereafter, and one by Mrs. Farrand, who perfected her appeal by filing a transcript Dec. 5,1884. Mrs. Storey afterward dismissed her appeal and moved the court to dismiss the appeal of Mrs. Farrand, which motion the court denied. The transcript from the probate court being filed by Mrs. Far-rand in the circuit court, her appeal was regularly docketed in that court, and appearance of Anson L. Storey was entered in said appeal. Said appeal came on for trial on the calendar of Judge Hawes,' who was holding one branch of the circuit court, and a petition for change of venue having been filed, an order was entered changing the venue from Judge Hawes to Judge McAllister. Judge McAllister declined to hear the case, and in regular progress of the circuit court docket it came on for trial before Judge Rogers, of said court. Appellant Anson L. Storey objected to the case being tried before Judge Rogers, for the reason that Judge McAllister was designated in the order changing the venue as the judge who should try the case. This objection was overruled by the court, and thereupon counsel for Mrs. Storey called one of the subscribing witnesses to the stand, when objection was made by the counsel for Mrs. Farrand to Mrs. Storey proceeding as proponent of the will, counsel insisting that Mrs. Farrand, being the appellant in the case, had a right to conduct it as proponent on her own part.
    The court, however, allowed Mrs. Storey to proceed as proponent of the will, and permitted her counsel to conduct the case, to establish the will. After the hearing of the case had progressed some time, Mrs. Farrand moved the court to be allowed to dismiss her appeal, claiming the right to control her own'appeal, as in other cases. The court denied her leave to dismiss the appeal" and the case proceeded, and an order was finally entered by the court finding the will propounded and dated Feb. 1, 1881,J to be the last will and testament of Wilbur F. Storey, deceased, and directing that it be admitted to probate and recorded as such, and that a copy of the order be certified to the probate court.
    From this judgment Anson L. Storey appealed to this court, and numerous errors were assigned by him, and Mrs. Far-rand also assigns error in that the court refused to allow her, by her counsel, to conduct the case, but allowed Mrs. Storey to manage it, and to control her, Mrs. Farrand’s, appeal, and that the court refused to allow her to dismiss her appeal, and in proceeding to try the case and enter judgment therein, after she, who was sole appellant, had moved to dismiss her appeal.
    Mr. W. C. Goudy, for appellant;
    that the contestant had the right, on the trial of this appeal, to introduce evidence of fraud, compulsion or other improper conduct, cited Heirs of Critz v. Pierce, 106 Ill. 170.
    Mr. John P. Altgeld, for Mary E. Farrand;
    that the interested person who prosecutes the appeal to the circuit court becomes in that court the proponent of the will, cited Wells v. Spraggins, 3 Grattan (Va.), 555.

      The jurisdiction of the circuit court in this case is purely appellate, and a party can not acquire a standing in it except by complying with the statute governing appeals: Kennedy v. Pennick, 21 Ill. 597; Ward v. People, 13 Ill. 636; Schooner Constitution v. Woodworth, 1 Scammon, 512.
    As to right to dismiss appeal: Lake’s Appeal, 32 Conn. 331; Hancock Co. v. Marsh, 2 Scam. 491; Shaffer v. Currier, 13 Ill. 667; Bacon v. Lawrence, 26 Ill. 53.
    Messrs. Trumbull, Washburns & Robbins and Messrs. Dexter, Herrick & Allen, for appellee;
    as to proof of execution of a will, cited Dickie v. Carter, 42 Ill. 376; Ambre v. Weishaar, 74 Ill. 109; Yoe v. McCord, 74 Ill. 38; Doran v. Mullen, 78 Ill. 342; Allison v. Allison, 46 Ill. 61; Finn v. Owen, 58 Ill. 112; Inglesant v. Inglesant, L. R. 3 P. & D. 172; Benton v. Franklin, 9 B. Mon. 28; In re Meurer, 44 Wis. 398; Dyer v. Dyer, 87 Ind. 13; Crowley v. Crowley, 80 Ill. 472; Orser v. Orser, 24 N. Y. 52; Trustees v. Calhoun, 25 N. Y. 425; Thornton v. Thornton, 39 Vt. 152; Cheatham v. Halcher, 30 Grattan, 65; Chambers v. Queen’s Proctor, 2 Curtiss, 415; Blake v. Knight, 3 Curtiss, 549; Rugg v. Rugg, 83 N. Y. 594; Matter of Will of Pepoon, 91 N. Y. 258; Tappen v. Davidson, 27 N. J. Eq. 460; Matter of Will of Higgins, 94 N. Y. 557; Peck v. Cary, 38 Barb. 77.
    The right of the contestant to introduce evidence of fraud, compulsion or undue influence was not denied, but it was insisted that this is an affirmative issue to be proved by the contestant, and not on cross-examination: Roe v. Taylor, 45 Ill 492; Critz v. Pierce, 106 Ill. 170.
    The admissibility of evidence will be considered by a reviewing court only on the ground on which it was offered by counsel in the court below: Daniels v. Patterson, 3 N. Y. 51; Beard v. Dedolph, 29 Wis. 143; State v. Neville, 6 Jones, 423; Weidler v. Bank, 11 S. & R. 134; Van Buren v. Wells, 19 Wend. 204; Wyngert v. Norton, 4 Mich. 286; Dyson v. State, 26 Miss. 362; Crenshaw v. Davenport, 6 Ala. 390; Baker v. Swan, 32 Md. 355; Winlock v. Hardy, 4 Litt. 272; Follansbee v. Johnson, 28 Minn. 311; Lombard v. Cheever, 3 Gilm. 473; Wilding v. Horner, 50 Ill. 50; Lonergan v. Stewart, 55 Ill. 44.
    The undue influence relied on to avoid a will must be connected with its execution: Rutherford v. Morris, 77 Ill. 412; Brownfield v. Brownfield, 43 Ill. 152.
    As to the right to dismiss the appeal: Allison v. Smith, 16 Mich. 405; St. John’s Lodge v. Collender, 4 Iredell, 335; People v. Frazer, 39 Mich. 198; Bradford v. Andrews, 20 Ohio, 214; Banning v. Kirby, 7 Am. Law Record, 601; Benjamin v. Tell, 11 Iredell, 49; Beuvist v. Murrin, 48 Mo. 52.
   Moran, J.

It is more convenient to consider such of the various errors assigned as we deem it necessary or important to discuss, in the order in which they arise in the record, than in the order in which they have been presented by the different counsel in their briefs.

This brings us first to the question whether, in view of the fact that the order changing the venue designated Judge McAllister as the judge to whom the case was to go for trial, Judge Rogers was authorized to try it. Sec. 2 of Chap. 146, R. S., relating to change of venue, is as follows: “When a change of venue is granted it may be to some other court of record of competent jurisdiction, in the same county, or in some other convenient county, to which there is no Adalid objection; provided that whenever the action is pending in either the Circuit or Superior Court of Cook county, and the only causes for a change of venue apply to one or more but not to all of the judges of such court, the case may be tried before some one of the judges of such court to whom the causes do not apply.”

It is apparent that there is no authority in this statute for naming, in the order changing the venue, a particular judge to try the case. The change is not to a particular judge, but it is from the particular judge or judges to whom the causes alleged in the petition are shown to apply. Any judge of the court to whom the causes do not apply has full power and authority to try the ease, and the judge on Avhose calendar it may happen, in the division of the court’s business, to be placed, the causes not applying to him, is the proper judge -to hear and determine it. The inserting of the name of a judge to try the cause, then, in the order changing the venue, must be held entirely unauthorized and to be treated as mere surplus-age. But there was a further reason why, even if it be assumed that the inserting in the order the name of a judge was proper, the inserting of Judge McAllister’s name would have to be regarded as nugatory. By an order of the Supreme Court of the State, duly entered in pursuance of the statute and constitution, and of which the circuit court would take judicial notice, Judge McAllister had been assigned to duty as one of the justices of the Appellate Court for the First District of Illinois, and he was at the time this question arose, engaged in this court in the discharge of such duty. While he was thus engaged it was -not in the- power of the circuit court to make any order which would assign him to try any case pending in that court, and such order being made was simply void, and could not affect the rights of the parties to the proceeding one way or the other.

¡Next in order are the alleged errors in giving Mrs. Storey the position of proponent of the will in the trial in the circuit court, and the refusal of the court to dismiss the appeal and end the proceeding, on the motion of counsel for Mrs. Far-rand. Whether there was error in these rulings can be best determined by considering what is the nature of a proceeding in the circuit court, on appeal from a judgment of the probate court, allowing or disallowing the probate of a will. The statute, Sec. 2, Chap. 3, makes it the duty of any person knowing that he is named as executor of the last will of any deceased person, to cause such will to be proved in the proper court within thirty days after the death of the testator, or to present the will and declare his refusal to accept the executor-ship. Another section makes it the duty of any person having possession of a will to file it after the testator’s death, in the probate court. When the will is produced to the court, the court has power to compel the attendance of the subscribing witnesses, and may, of its own motion, proceed to the probate of the will.

It is the usual practice for a petition to be filed bringing the death of the testator to the knowledge of the court, and asking that the instrument purporting to be the will be admitted to probate. The person thus asking to have the will probated, has come to be termed the proponent of the will. The proceedings in the probate court may be without any notice, and from the order of the court allowing or disallowing the will to probate, appeals may be taken to the circuit court in the same manner as appeals may be taken from justices of the peace, and the trials of such appeals shall be de novo. It is admitted by counsel for Mrs. Tarrand, that in the proceeding to prove a will in the probate court there are no parties; that the judgment is in rem, and unless' appealed from is binding on the whole world; but counsel contends, with zeal and ingenuity, that when an appeal is taken by one party the proceeding then becomes one inter paries, the appellant on one side and the appellees on the other; that none can be appellants except those who have complied with the statute in taking and perfecting an appeal, and that the appellant has, as in the case of an appeal in an ordinary suit, where there is a plaintiff and a defendant, the absolute right to control the appeal. A proceeding in rem is a proceeding instituted against a thing and not against a person, and a judgment in rem is a judgment or sentence upon or against a thing, determining its condition or status, and the judgment ipso facto renders it what it declares it to be. 1 Bonvier Law Dictionary; Woodruff v. Taylor, 20 Vt. 73.

Such is the judgment entered in the probate court, upon the probate of a will. How, what is the judgment entered in the circuit court on an appeal by any party interested ? Is it not also a judgment in rem? And if so how can the proceedings be said to be inter pa/rtes? The judgment is what determines, and it is simply a declaration on the will, and not a judgment for or against appellant or any other person interested. The appeal is the method provided by law by which the circuit court gets jurisdiction to pronounce a judgment in the matter. It is not an appeal for the purpose of reviewing the judgment of the court below, but is a transferring of the case into a forum where it is to he heard de novo, on original evidence, and where evidence may be introduced which is not competent on the hearing in the probate court. The statute gives to any party in interest the right to so transfer the case by appeal, but when once in the circuit court, the party so bringing it into court stands in the same relation to the proceedings as does any other party in interest. The question in the circuit court, as in the probate court, is simply will or no will, and the judgment of the court, when rendered, unless reversed or set aside in some proceeding for that purpose, is binding on all persons, whether in any manner they appear as formal parties on the record or not. On the trial the parties in interest may arrange themselves upon the issue as in favor of, or in opposition to, the probate of the will, and all those who seek to have the will admitted to probate become proponents, and those who oppose it become contestants; but no one can withdraw the cause or stop the proceedings against the objection of any person on the one side or the other of “ the issue, who is interested in having the question determined by the court.

When the case comes to hearing, those who in good faith seek to have the will admitted to probate have the affirmative of the issue, and therefore by the ordinary rule they are entitled to first produce their evidence to the court. The onus is on them, therefore they have the right to begin, and on hearing of this case, Mrs. Storey having assumed the duty which the statute laid upon her as the executrix named in the will, and petitioned the county court to admit it to probate, and standing in the circuit court in good faith seeking to have probate allowed, she was properly regarded by the court as the proponent of the will, and her counsel were properly given the conduct of proponent’s side of the issue. Though Mrs. Farr and appealed from the judgment of the probate court, refusing probate of the will, her interest appears to be that no will should be established; tiiat there should be a case of intestacy; and her attitude on the heading in the court below was consistent with her apparent interest. To have given her counsel the conduct of proponent’s case would have been to commit the proving of an affirmative into the hands of one whose interest and. desire it was to have the negative established. There was then no error in giving to the counsel of Mrs. Storey the control of the case in the circuit court, and no error in refusing to allow Mrs. Farrand to dismiss the appeal. The following authorities are in general support of the view here taken: Tibbatts v. Berry, 10 B. Monroe, 473; Frazer v. Wayne Circuit Judge, 39 Mich. 198; Frazier v. Jennison, 106 M. S. 141; Bradford v. Andrews, 20 Ohio St. 209; Benoist v. Murrin, 48 Mo. 48; St. John’s Lodge v. Callender, 4 Iredell’s Law, 335; Enloe v. Sherril, 6 Iredell’s Law, 212; Banning v. Kirby, 7 Am. Law Record, 601; Benjamin v. Teal, 11 Iredell, 49; apparently contra, Lake’s Appeal, 32 Conn. 331, and Lan. caster’s Appeal, 47 Conn. 248.

We are now brought to consider the propriety of the judg-' menfc of the circuit court in admitting the will to probate. The subscribing witnesses testified that the testator was not, at the time of the execution of the will, of sound mind and memory. To establish the testator’s capacity the proponent called and examined a large number of witnesses who were well acquainted with the testator, and who met him socially and in business, some of them very frequently, and others at intervals but more seldom, during the latter part of 1880 and during the winter, spring and summer of 1881. Among the witnesses were those who had been, during the years 1880 and 1881, in the employ of Mr. Storey on the staff of the Chicago Times in positions of trust and responsibility, the duties of which brought each of them in daily contact with the testator and gave them favorable opportunities for observing his mental condition and business capacity. Those witnesses are in accord with all the others called by the proponent in stating that Mr. Storey was, at the time of the execution of the will and for many months prior and subsequent to the time of its execution, sound in mind and memory and attending to his business with usual intelligence and judgment. The will was dated February 1, 1881, and is shown to have been executed some time in March of that year. A number of letters written by testator between July, 1880, and April, 1882, are in the record. Three of these letters were written during the month of March, 1881.

There is nothing in anjr of these letters, which, in our opinion, would indicate that the person who wrote them was of unsound mind, while some of them, some nearest in date to the time of the execution of the will, bear internal evidence of acuteness, precision, business discrimination and prudence, on the part of the writer. There is also in the record a report of testimony given by Mr. Storey in the case of Early v. Storey, in which the witness went into the narration of matters occurring some seven years before, and which shows on the part of the witness a clear recollection of the matter as to which he was interrogated, intelligence and discrimination in his answers, and is very far from suggesting mental imbecility or intellectual obscurity or confusion. It further appears, from the evidence, that testator was at his office in the Times building during the months of January, February and March,. 1881, nearly every business day, and that he signed checks during those three months, dated on nearly every business, day, in the regular course of business, aggregating $163,000; and that while the checks were made out in the business office of the Times, they were accompanied when they were taken to Mr. Storey for his signature, by a bill or voucher showing the purpose for which the check was drawn; that between December 6, 1880, and April 6, 1881, he signed twenty-four notes amounting to over $125,000, which were either given for money borrowed at the banks or in payment for printing paper.

To support the contention that the testator was not of sound mind, it was shown that in 1878 he suffered a paralytic stroke, which, it was claimed, affected .his mind, and from the effects of which'he never recovered; and an offer was made to show by the record of the probate court that on August 8, 1884, testator was declared by said court, by an order based on the verdict of a jury, to be a distracted person, but this record was ruled out by the court, as being too remote! It was shown that for several years prior to his death, testator held the belief that communications could be had with the spirits of another world, and it is contended that advantage was taken of his credulity in the matter of such spiritual communications by Mrs. Storey and her sister, one Mrs. Bose, to practice imposition upon him. Mrs. Bose pretended, it is said, to have received communications from the spirit of some Indian, who took great interest in the welfare of Mr. Storey. It is shown by references made by said Storey in some of the letters written by him, that he thought himself in receipt of advice, as to some of his matters, from a spirit or individual to whom he alluded as the “little squaw;” that he is receiving treatment for his bodily ailments from the same source, which is greatly benefiting him. His faith in these “little squaw” manifestations and communications, which they regard as a delusion and the result of the imposition" alleged, is one of the main facts stated in support of their opinion by the witnesses who testify that the testator was of non-disposing mind.

The lawyer, Alfred S. Trude, who drew the will, and is one of the subscribing witnesses to it, mentions in support of -his opinion that the testator was of unsound mind and memory when he signed and executed the will, facts that tend to show that testator’s memory was impaired. He would recur frequently to the same subject in apparent forgetfulness that he had given instructions on the matter before; that he caused several contracts to be drafted with regard to the same thing, and seemed oblivious of the fact, on the occasion of giving instruction for such contract, that the prior contracts had been drawn in reference to the same matter. This witness also mentions a belief of testator’s that he was the victim of sewer-gas, which belief was based on information obtained from the spirit of “Little Squaw” through Mrs. Bose; that testator was urged by “Little Squaw” to hurry-tlie completion, and at the same dictation changed, in many ways, the plans of the building known as the Storey mansion, the expenditures for the erection of which were, it is argued, out of all proportion to testator’s financial ability and not in accordance with prudent business management; that testator was led on to gratify the ambition of Mrs. Storey in this, course, and by a conspiracy of Mrs. Storey and her sister and through means of the pretended spiritual communications, and that the signing of the will in question was brought about by the same means.

The witness, Patterson, based his opinion on the fact that Mr. Storey’s memory seemed defective, and that his mind seemed weak, and he was. not as competent as formerly to attend to his business. The other subscribing witness, McLenthen, when asked to state facts on which he based his opinion, mentioned instances indicating absent-mindedness or forgetfulness, such as walking into a room with the idea of saying something and apparently forgetting what it was, and going back without saying anything. There is much in the testimony of these witnesses to lead to the belief that they confused the term sound memory with defective memory. Sound mind and memory is equivalent to the term sanity, and the mind and memory which is sufficiently sound to constitute testamentary capacity, is the capacity to transact ordinary business. “It is not required that he shall possess a higher capacity for that than for the transaction of the ordinary affairs of life. A man capable of buying and selling property, settling accounts, collecting and paying out money, or borrowing or loaning money, must usually be regarded as capable of making a will.” Carpenter v. Calvert, 83 Ill. 62. “ The property

owner, unless an idiot or lunatic, must be allowed to make his own distribution and disposition of his property; nor does the fact that a party is physically unable to look after his property, or that his mind is enfeebled by age and disease, if not to the point of lunacy or absolute imbecility, take from him this power.” Kimball v. Cuddy, Supreme Court, Ill., 6 N. E. Rep. 589. “If the testator was of sound mind but of poor or impaired memory, he was of sound mind and memory, as the phrase is known in law. The failure of memory is not sufficient to create the incapacity, unless it be quite total or extend to his immediate family and property. As known in law, sound memory is something quite different from good or unimpaired memory, in which sense the subscribing witnesses evidently understood it. Failure of memory does not constitute unsoundness of memory.” Yoe v. McCord, 74 Ill. 33.

The fact that a man somewhat advanced in years, and suffering from disease, holds the opinion, whether founded on his own imagination or the suggestions of others, that his ailment is due to this or that cause, which opinion is apparently and even demonstrably false, or that one who professes a belief in what is known as spiritualism, may be influenced by and led to give credence to alleged communications from spirits which are, in fact, no communications, but impositions and delusions contrived by designing persons, is very far from sufficient to prove in such person want of testamentary capacity. Such beliefs, even if whims or delusions, are compatible with disposing minds on the part of those holding them, but such facts are proper to be considered with reference to questions of mental weakness and the susceptibility of the testator to the arts of those who would mislead him for some purpose of their own.

The evidence in this record on the question of mental capacity is very voluminous, and a detailed statement of all the evidence on both sides of that issue in this opinion, would serve no useful purpose.

From the brief resumé made of the main features of the evidence of proponents and contestants, it will be seen that testator was for some months before and after1 the execution of the will in question, engaged in the transaction of his ordinary business; that about the time of the will and subsequently, he wrote letter's relating to important phases of his newspaper business and other matters which exhibit mental clearness, business shrewdness and intelligent discrimination and forethought; that, being placed on the stand by his attorney, one of the subscribing witnesses to the will, shortly after its execution, he testified with clearness and perspicuity in answer to the questions put to him; that a number of witnesses who knew him well, state it as their opinion, that while he was weak and shattered in bodily health, he was mentally clear and sound; that the only witnesses who testify to want of capacity are the subscribing witnesses, who, while it must be admitted that they had intimate relations with the testator, and frequent intercourse with him, and while their truthfulness in stating their opinion need not be questioned, still give their opinion in opposition to the fair significance and import of their act in signing the attestation clause. It is also inconsistent with the general conduct of one, at least, if not of two of said witnesses, toward testator, and others with whom they acted for him and under his instructions, and it is a moderate expression of the doctrine of the authorities on this point, to say that such circumstances must' detract largely from the weight which a court would otherwise .be willing to give to the opinion of witnesses having the same opportunities for observation. Redfield on Wills, p. 96, note 4; Scribner v. Crane, 2 Paige, Ch. 149; Garrison v. Garrison, 15 N. J. Eq. 270; McMakin v. McMakin, 2 Bush (Ky.), 79.

Considering, then, the evidence in this record, in connection with all the facts and circumstances which are proper to be considered .in Aveighing it, and bearing in mind the measure of mental capacity and recollection on the part of a testator which suffices to make a valid will, we think the conclusion reached by the learned judge Avho tried this case in the court below, that the testator was, at the time of the execution of the will in question, of sound and disposing mind and memory, is supported by the clear preponderance of the evidence.

The next point raised on the record, and the one most strenuously pressed by counsel for appellant, is as to the correctness of the finding that the will in question Avas duly executed. To entitle a will to be admitted to probate, four things must concur. The will must be in writing, and signed by the testator, or in his presence by some one under his direction; it must be attested by íavo or more credible Avitnesses; two Avitnesses must prove that they saw the testator sign the will in their presence, or that he acknoAvledged the same to be his act and deed, and when the hearing is in the circuit court on appeal, proof must be made by the subscribing witnesses or others that, at the time of execution, the testator was of sound mind and memory. Dickie v. Carter, 42 Ill. 376.

It was shown in this case that the will was drawn by the attorney of the testator, and that he took it to the house of the testator to be signed. On his arrival, he found the testator in a somewhat elated state of mind, caused, it is to be inferred, from drinking an intoxicant which was on the table near at hand. The will was handed to Mrs. Storey, who read, or stated to her husband, the provision thereof about her not marrying again, and then said: “Mow, Wilbur, sign this. You know what the little squaw has said about making provision for those you love best; and you know I love you and you know you love me best.” Testator thereupon took up a pen and signed the will. The will was left by the attorney at the house of the testator, and afterward it came to his possession from the hands of Mrs. Storey, and about a month after the signing, the attorney took the will, together with an ante-nuptial contract, to the business office of the testator in the Times building, where he found Mr. Storey, and after transacting some other business with him, the attorney produced the will and requested the testator to call some of the editorial writers or persons connected with his newspaper to come and sign the paper.

Testator thereupon communicated, through some contrivance provided for that purpose, with the business office, and within a few moments, in reply to his summons, Patterson, the business manager of the Times, entered the room. The will was either in the hand of attorney Trude or was lying on the desk and the testator was sitting in front of the desk, and when Patterson came in, the attorney said to him, “ I want you to sign this paper,” or “ I want you to sign as a witness,” or “ I want you to witness this signature.” Patterson thereupon signed the paper, placing it for the purpose of writing his name, on the top of the pigeon holes at the end of the desk. Thereupon Trude signed the paper and then said, “We might have another witness,” or “You get another witness,” and Patterson went out in the hall and called in McLenthen, and the attorney said to him, “Sign this,” or “Sign here,” indicating the will. During all this time testator was sitting at his desk within three or four feet of the subscribing witnesses wdien they wrote their names, and McLenthen states that he wrote his name within reach of Mr. Storey’s arm, if he leaned forward in his chair. Testator sat in a listless attitude in his chair, and did not look at the witnesses when they signed, said nothing to the witnesses, but after the signing by them, he took the will and the ante-nuptial contract and folded them together and handed them to Patterson, saying: “Take those and take care of them for me.”

Testator’s knowledge that there" was a will and of its contents, is inferable from the evidence. It appears that the will in question is substantially the same, in its provisions, as a will of prior date, which was introduced in evidence, and which was shown to be in Storey’s handwriting, and Judge L. B. Otis testified that in the spring of 1881, testator told him, in a conversation which took place between them, that he had made a will; that Mr. Trude had drawn it: that theretofore he had drawn his own wills and could draw a will as well as any one, but this one Trude had drawn. He mentioned the witnesses, and Otis recalled Patterson as one that he named. We understand from the testimony of Trude, that he stated or read some portion of the contents of. the will to the testator when he brought it to testator’s room to have it signed by the subscribing witnesses. It also appears that at the time testator handed the will together with the ante-nuptial contract to Patterson tó take care of them, there was indorsed upon the will in the handwriting of testator, “Will, etc., W. F. S.”

Considering this evidence in the light of the conclusion which we have reached from the record, that at the time of the signing of this will by the testator, and at the time of the signing by the subscribing witnesses, testator was of sound mind and memory, and therefore necessarily had an understanding of the nature of the business in which he was engaged and discretion to comprehend and transact it intelligently, and applying the rules of the statute for the execution of wills as interpreted by various decisions of the Supreme Court, we are led to the conclusion that the execution of this will was duly proven. The request of testator’s attorney, made to the other witnesses in his presence, to sign the paper, without dissent by him, was in law testator’s request to them to sign it.

Having it thus signed in his presence, and delivering it to Patterson for safe keeping, in the presence of Trade, with the word “Will” written on it with his own hand, Patterson having seen testator’s signature upon it when he signed it as a witness, was, under the circumstances, a sufficient acknowledgment of the will to Patterson, and the witness Trade saw the testator sign it, and himself signed it as a witness in testator’s presence. This was sufficient; no declaration by the testator that the paper is his will is necessary, nor need the witness know that he is attesting a will, nor is it necessary that the testator should actually see the witnesses sign if he is in such position when they sign that he could see them if he chose so to do. Allison v. Allison, 46 Ill. 61; Yoe v. McCord, 74 Ill. 38; Doran v. Mullen, 78 Ill. 342; Flinn v. Owen, 58 Ill. 112; Dickie v. Carter, 42 Ill. 346; Ambre v. Weishaar, 74 Ill. 109; Peck v. Gray, 38 Barb. 78; Benton v. Franklin, 9 B. Mon. 28; Inglesant v. Inglesant, L. R. 3 P. & D. 172.

It need not be shown that the testator knew at the time of the execution the entire contents of the will. That he knew die contents is to be presumed from his signature; and the certificate of attestation, signed by the witnesses, is entitled to much weight when their testimony contradicts it after the lapse of five years. Yoe v. McCord, supra; Oser v. Oser, 24 N. Y. 52; Matter of Will of Pepoon, 91 N. Y. 258.

Counsel for appellant complains that he was not permitted, on cross-examination of the subscribing witnesses, to go into the evidence showing fraud, compulsion or improper conduct. The court below permitted full cross-examination as to e\ erytliing which took place at the time of the signing of the will by the testator, and at the time of the signing by the witnesses. In our o¡3Ínion that was the proper extent of the cross-examination, and evidence of facts occurring at other times tending to prove such fraud, compulsion or improper practice, was in the nature of affirmative evidence, and should be offered when contestants came to make their case.

The contestants, after proponent had closed, offered to prove, that during the first six months of 1881 Mr. Storey was not of sound mind and memory; that he had no testamentary capacity. The offer was objected to and ruled out by the court. The next day, as appears from the record, counsel directed the attention of the court to the general offer made and ruled upon the day before, and, as he stated, so as surely to save the point, on the ruling in the record, called a witness and asked him to state what was the condition of Mr. Storey’s mind in Maich and April, 1881, and what was the condition of his memory, and to state generally what, at that time, was the condition of Mr. Storey’s mental faculties. Objections were made and sustained to these questions, the court understanding them to refer to the offer already ruled on, to wit, the question as to whether testator was of sound mind and memory.

Counsel now contends that the court erred in sustaining the objection, as the evidence was competent to show that the testator had become weak in will and impaired in memory, and was therefore an easy prey to fraud, compulsion and improper conduct. We agree with counsel that the questions asked were proper to show that testator’s mind was weakened and enfeebled to such a degree as to make him an easier victim of undue influence or other fraud or improper conduct; but from the counsel’s offer and statement in the court below, and from the statements of the court as preserved in the record, we think it clear that the testimony must be held to have been offered in the court below only for the purpose of proving that testator was not of sound mind and memory, and in that view, and in that alone, the court ruled upon it. If counsel had a different purpose in view he should have announced it to the court, and, having failed to do .so, the sustaining of the objection can not be urged for error here.

Moreover, there is no evidence in this case going to show fraud, compulsion or improper practice. Such fraud, to avail, must be directly connected with the execution of the will, and must be such as to deprive the testator of his free agency; and the advice or even persuasion of a wife, to induce a will in her favor, is lawful. Yoe v. McCord, supra; Rutherford v. Morris, 77 Ill. 412.

Counsel did not offer to introduce evidence showing such fraud or improper practice when he put his question as to mental capacity, and even if weakness of mind existed and was proved, it would be immaterial, unless there was proof of fraud. Weakness and opportunity for fraud or undue influence does not prove that the one has been perpetrated or the other exercised. It is admitted by counsel, that under the rule in Critz v. Peirce, 106 Ill. 167, the evidence was not admissible for the purpose for which we hold it to have been offered; and it is settled, by abundant authority, that the admissibility of the evidence will be considered by a reviewing court only on the ground on which it was offered by counsel in the court below. Daniels v. Patterson, 3 N. Y. 51; Beard v. Dedolph, 29 Wis. 143; State v. Neville, 6 Jones’ Law, 423; Weidler v. Bank, 11 S. & R. 134; Wyngert v. Norton, 4 Mich. 286.

There are other errors assigned which we do not deem it necessary to discuss further than to say that, in our opinion, they can not be sustained.

The probate of a will, under our statute, is in a certain degree a summary proceeding, and the inquiry is confined by the law in such manner as to indicate that the policy of the statute is best carried out by a liberal course in the courts in sustaining probate of a will, if the requirements as to proof of execution appear to have been fulfilled.

If the contestants have meritorious grounds on which to contest the validity of this will, they will find a more adequate forum in a court of chancery, where the inquiry is not narrowed by the limits imposed by the statute on parties contesting the probate of a will; and in such proceeding they will be in no manner concluded by the results of this case in this court or elsewhere.

Upon most patient and careful examination, we find no error in the record, and the judgment of the circuit court will therefore be affirmed.

Judgment affirmed.


author: Bailey, J.

text:
    First District
    October Term, 1886.
    George W. Miller v. James McGraw et al.
    1. Practice—Hew trial.—A new trial will not be granted because the trial was had in the absence of the defendant or bis counsel when such absence is attributable to his own negligence. The court is of opinion that the affidavits in this case fail to show such diligence as the law requires.
    Error to the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed October 27, 1886.
    This was an action of assumpsit, the declaration consisting of one special count and the common counts. The special count alleges that, on the 29th day of May, 1877, McGraw and Downey, the plaintiffs, were the owners of certain lots of land in Cook county, which, together with certain other lands, were then incumbered by a trust deed for §7,000, executed March 15, 1872, by Miller, the defendant, while he was the owner of the premises thus incumbered, said trust deed being given to secure the payment of an indebtedness of the defendant for that amount, due five years thereafter, with interest at the rate of ten per cent, per annum; that on said 29tli day of May, 1877, said indebtedness being past due, and the plaintiffs being desirous of freeing their lots from said incumbrance, and the defendant being also desirous of paying said indebtedness, and relieving himself from liability thereon, the plaintiffs, at the special instance and request of the defendant, paid to him the sum of $313.50, in consideration whereof the defendant executed and delivered to the plaintiffs the following instrument, to wit;
    “$313.50 Chicago, May 29,1877.
    Received of James McG-raw and Joseph Downey the sum of three hundred thirteen dollars and fifty cents in full payment of said McG-raw and Downey’s share of a certain incumbrance (describing said trust deed and McGraw and Downey’s subsequent title to a portion of the incumbered property), in consideration of which payment I hereby agree to have said $7,000 note and all accrued interest thereon paid and said lots properly relieved of all lien or charge on account of said incumbrance.
    George W. Miller.”
    That the defendant wholly neglected and refused to pay said indebtedness after receiving said money from the plaintiffs, by reason whereof said deed of trust was afterward foreclosed and said lots sold and thereby wholly lost to the plaintiffs.
    The defendant pleaded non assumpsit, and upon the issue thus joined, a trial was had before the court and a jury, in the absence of the defendant, resulting in a verdict and judgment in favor of the plaintiffs for $900 damages.
    Afterward and at the same term of court, being the June term, 1886, the defendant moved for a new trial, and in support of his motion filed his own affidavit stating, in substance, that he relied on and daily scrutinized the court record published in the Daily Tribune, but observed no mention of a new calendar for Judge Williamson who tried the case below, and concluded that said judge was still engaged on his old calendar of some 3,000 cases, and would be so engaged until the then approaching summer vacation; that he procured and searched the new calendar for Judges Anthony and Gary, and not finding this case therein, was confirmed in said conclusion; that he was greatly surprised and chagrined when informed hy the plaintiffs’ counsel that he had taken an ex parte judgment for §900 against him, and that the cause was upon a new calendar for Judge Williamson for the June term; that the plaintiffs materially contributed to defeat the release of their lots from the trust deed by their tardiness in furnishing money therefor, and by their frequent procrastinations in the meantime, wearing out the patience and incurring the disgust of other lot owners interested; that the holder of the incumbrance refused to release the plaintiffs’ lots therefrom unless certain eighteen other lots were included; that said judgment is unjust and oppressive, being .about four times, the market value of said lots of the plaintiffs, May 29, 1877, the date of the receipt of said money from the plaintiffs; that the defendant’s meritorious defense mentioned in the pleadings would be additionally and more fully presented were an opportunity afforded, on a Pew trial. The defendant also filed the affidavits of two other persons, to the effect that on the 29th day of May, 1877, the plaintiffs’ lots were worth not to exceed §240 to §250. The foregoing being all the evidence adduced in support of the motion for a new trial, said motion was denied by the court, and the defendant brings the record to this court by writ of error.
    Mr. George W. Miller, for plaintiff in error.
   Bailey, J.

There was no error in refusing the defendant a new trial. The grounds urged in support of the motion were, 1, that the defendant ivas taken by surprise; 2, that the judgment is unjust and oppressive, and 3, that the defendant has a. meritorious defense. As no portion of the evidence adduced at the trial is preserved in the record, none of the foregoing grounds appear except so far as they are shown by the affidavits filed in support of the motion.

A new trial will not be granted, because the trial was had in the absence of the defendant or his counsel, when such absence is attributable to his own negligence. Koon v. Nicliols, 85 Ill. 155; Edwards v. McKay, 73 Ill. 570. The affidavits in this case, fail to show such diligence as the law requires. All the defendant claims to have done was to examine the court proceedings as published in one of the daily newspapers, and to procure and examine the new calendars prepared for the use of two other judges of the superior court. He made no inquiries whatever as to whether a similar calendar had not been prepared for Judge Williamson before whom this suit was pending, nor does he seem to have paid the slightest attention to the call of the calendar in Judge Williamson’s branch of the superior court, beyond reading the court proceedings in a newspaper, which, so far as this record shows, may not have been or purported to be an accurate or complete statement of the proceedings of the superior court. In any view we can take of the case his absence from the trial was attributable to his own negligence, and he must, therefore, suffer the consequences.

In addition to this the affidavits fail to show a meritorious defense. We are unable to say from anything appearing in the record, what the cause of action may have been for which the judgment was recovered. There is no attempt in the affidavits to enlighten us on that subject, and as the evidence heard at the trial is not preserved, our only information as to the ground of the recovery must be derived from the pleadings. But the declaration consists not only of a special count on the defendant’s contract to satisfy the deed of trust and discharge the plaintiffs’ lots therefrom, but also the common counts; and so far as we can judicially know, the recovery may have been had under the latter counts for some cause of action not specifically stated. It can not be seen then that the defense attempted to be stated in the affidavits has any application to the cause of action for which the judgment was rendered.

But we are inclined to the opinion that the affidavits fail to show any defense to the cause of action stated in the special count. It is not claimed that the plaintiffs are not entitled to recover the value of the lots of land which they have lost by the defendant’s default in the performance of his contract to xrelease them from the deed of trust. The only contest is as to their value. The affidavits show that at the date of the contract they were worth much less than the damages recovered, but there is no attempt to show their value at the time the plaintiffs lost then- title by the foreclosure of the deed of trust. It was their value at the latter date, rather than the former, which would constitute the plaintiffs’ measure of damages, and so far as appears, the lots may have been worth the amount of the judgment at the date of the foreclosure.

There being no error in the record the judgment will be affirmed.

Judgment affirmed.


author: McAllister, P. J.

text:
    Charles J. Haines v. Inter Ocean Publishing Co.
    1. Instructions.—To single out and make prominent in an instruction a particular fact, "which, if true, is not conclusive, is error.
    2. Agent—Instruction—Assuming authority—The question as to the authority of the agent to bind the defendant was, under the peculiar circumstances of this case, a mixed question of law and fact. It was therefore fatal error for the court in an instruction to assume such authority to the full measure necessary.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed October 27, 1886.
    This suit was brought by appellee in justice’s court, against appellant, Haines, to recover for advertisements of the Grlen Flora Mineral Spring Water, inserted in the Inter Ocean newspaper. On appeal to the circuit court, there was a trial by jury, resulting in a verdict and judgment for appellee against Haines in the sum of §136.65, besides costs, from which the latter took an appeal to this-court.
    It appeared on the trial that said spring was owned by Haines and one Mrs. Palmer, the latter being a non-resident of the State, and that they were carrying on the business of selling the water as partners; that the firm had no general agent acting for them in respect of said business, but that one A. A. Mason, who was not interested in the said business, but being a brother of Mrs. Palmer and having charge of real estate for her which she owned here, was in the habit of looking after her interest from time to time in said business. But the evidence tended to show that he had no authority, actual or apparent, to procure or direct advertising to be done for said firm. It further appeared that one Case was engaged for a time in selling said water in Chicago; but the evidence tended to show that in doing so he was acting on his own behalf, by purchasing the water óf Haines and Mrs. Palmer at certain prices, and selling it for what he could get; that the advertising in question wras done upon the request of said Case, but that he had no authority to bind the firm of Haines & Palmer, and that neither of them had any knowledge that he had directed it to be done for them or their benefit; nor was there any evidence tending to show that either Haines or his copartner ever knew, until after this advertising was done, that Case had been holding himself out to plaintiff" below, or others, as their agent or manager ; and the evidence shows that as soon as that fact came to their knowledge they repudiated all his acts of assumed agency.
    A witness for plaintiff testified that after the advertising in question xvas partly done, Case came into the plaintiff’s office with, said Mason, and there introduced said Mason as president of the' Glen Flora Mineral Spring Co., and that Mason, acquiescing in the title and character thus mentioned, spoke of the advertising which plaintiff had done; said it Avould be paid for, and that the company Avould Avant more of it done. Mason, being called as a xvitness for defendant, explicitly denied that Case introduced him as president, stating that there Avas no incorporated company and no president; and controverted all the plaintiff’s xvitness had testified to as occurring.
    The court, at the instance of plaintiff’s counsel, gave to the jury the following instructions:
    1. If the jury believe from the evidence that at the time the advertising in question is alleged to have been done the defendant, Haines, or A. A. Mason, while acting for Mrs-Palmer, and with full authority to manage her interest in the partnership, if there was a partnership, knew that S. M. Case was contracting for advertising with the plaintiff company, in their name and as their agent, and made no objection to his so doing, but received the benefit of such contract without objection, then the defendant Haines would be bound by any such contract
    2. If the jury believe from the evidence that in the winter, spring and summer of 1882, etc., the defendant, Haines, or A. A. Mason, acting for Mrs. Palmer, with authority to manage her interest in the partnership, if you find there was a partnership, knew that Case was acting as their agent, making contracts for advertising in their names with plaintiff company, and voluntarily permitted him to do so by appearing at the office of the plaintiff with the said Case, and allowing the said Case to represent to the plaintiff that the said Mason was the president of the company, and the jury further believe from the evidence that the said Case, while so acting, contracted for advertising with the plaintiff company,then the defendant would be bound thereby, whether the said Case was in fact their agent at the time or not; and your verdict should be for the plaintiff.
    Mr. Arnold Tripp, for appellant;
    that it is not proper to single out an isolated fact and give it prominence in an instruction, cited Hewett v. Johnson, 72 Ill. 513; Hutchinson v. Crain, 3 Bradwell, 20; Protection Life Ins. Co. v. Dill, 91 Ill. 174; Drohn v. Brewer, 77 Ill. 280.
    Messrs. Bennett, Phelps & Holmes, for appellee;
    that a verdict will not be disturbed unless it is manifestly against the weight of the evidence or to prevent a plain perversion of justice, cited C. & N. W. Ry. Co. v. Ryan, 70 Ill. 211; Papineau v. Belgarde, 81 Ill. 61; Foos v. Sabin, 84 Ill. 564; Guerdon v. Corbett, 87 Ill. 272.
   McAllister, P. J.

The question as to the authority of Másente bind the defendant Haines, was, under the peculiar circumstances of the case, a mixed question of law and fact, and was in dispute on the trial upon both elements. But the court, by the first instruction for the plaintiff, assumed such authority to the full measure necessary. That was clearly improper and, as the case stood upon the evidence, a fatal error.

The same assumption was made in the second instruction for plaintiff. Hot only that, but the court therein assumed it as a fact, that Mason allowed Case to introduce him in plaintiff’s office as the president of the Glen Flora Mineral Spring Company, notwithstanding that fact had been explicitly denied by Mason in his testimony. To thus single out and make prominent in an instruction a particular fact, which, if true, is not conclusive, has repeatedly been held to be erroneous.

For these errors the judgment must be reversed and cause remanded.

Judgment reversed.


text:
    Philip H. Decker v. John Patton et al., Ex’rs, etc.
    1. Parties—Foreign executor.—A foreign executor, appointed by the court of another State, may properly appear in a suit in the courts of this State and defend the interests of his estate, and is a proper party for that purpose. He may, under the statute, appear in court in any form in which it may become necessary for him to properly prosecute or enforce any of the claims of the estate of his testator.
    2. Chancery—Mortgages—Strict foreclosuhb.—In this State, in view of our statute, it is only in exceptional cases where the interest of both parties manifestly require it, that strict foreclosures will be decreed. Such foreclosures are not proper, as a general rule, where there are incumbrances upon the property or creditors, or purchasers of the equity of redemption.
    3. Same—Bills to redeem.—No such restrictions, however, are imposed upon courts of equity in entertaining bills to redeem. In such cases the material question is whether the complainant is entitled to redeem from the incumbrance, and if suck right is established, he is permitted to redeem irrespective of the relative value of the property, or the claim of third persons.
    4. Same.—An offer to redeem in a bill of this character is neither necessary nor material.
    5. Same—Decree.—Upon a hill to redeem, where there are no peculiar facts and circumstances taking the case out of the ordinary rule, the com-' plainant can not claim as right to have a decree entered for the sale of the mortgaged premises as in cases of foreclosure subject to the statutory right of redemption; and it is not error for the court to refuse to decree a sale, but to enter the decree usual in cases of bills to redeem.
    6. Redemption—In bill to redeem, discretionary with the court.—Upon a bill to redeem, the time within which the redemption is to take place rests within the sound discretion of the court in view of all the circumstances, but the time which seems to have been usually adopted is six months.
    7. Evidence—Oe judgments against complainant properly excluded.—Evidence of judgments against the complainant in this case was properly excluded.
    Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed October 27, 1886.
    Mr. W. T. Burgess, for plaintiff in error;
    cited Barnard v. Cushman, 35 Ill. 451; Brown v. Gaffney, 28 Ill. 149; Dwen v. Blake, 44 Ill. 136; Quinn v.Brittain, Hoff. (N. Y.) Ch. 353; Shannon v. Spears, 2 A. K. Marshall, (Ky.) 311; Bishop of Winchester v. Paine, 11 Ves. 199; Sheldon v. Patterson, 55 Ill. 507; Warner v. Helm, 1 Gilm. 220; Farrell v. Parlier, 50 Ill. 274; Rourke v. Coulton, 4 Bradwell, 251; Miller v. Davis, 5 Bradwell, 474; Hollingsworth v. Koon, 18 Chicago Legal News, 269.
    Messrs. Hutchinson & Luff, for defendants in error;
    cited 2 Daniell’s Ch. Pr., 998; 2 Jones on Mortgages, §§ 1106, 1107; Harper v. Ely, 70 Ill. 581; 1 Starkie on Evidence, 213; 1 Greenleaf on Evidence, § 522; Whitaker v. Wheeler, 44 Ill. 440.
   Bailey, J.

This was a hill in chancery brought by Philip H. Decker to redeem certain real property from a deed of trust executed December 8, 1879, by Mary P. Saunders and Tilomas W. Saunders, her husband, to O. K. A. Hutchinson, as trustee, to secure the payment of certain promissory notes for §2,500 and interest, executed by said Thomas W. Saunders to Mindwell L. P. Patton. The case made by the bill, so far as it t^pars upon the questions raised by counsel in their arguments, is briefly as follows: In the year 1873, the complainant purchased and took possession of the premises in question and made various improvements thereon. In 1874, he executed a deed of trust upon said premises to secure §3,509 of borrowed money. After the complainant had made payments reducing this indebtedness to §2,500, the deed of trust was foreclosed and said premises sold, said Mary P. Saunders, who is a sister of the complainant, becoming the purchaser. To secure the purchase money to the holder of the incumbrance, said Mary P. Saunders and husband executed the notes and deed of trust in question in this suit, the complainant guaranteeing said notes. Mary P. and Thomas W. Saunders thereupon, for a consideration moving solely from the complainant, and at his request, conveyed said premises to Simeon Babcock, and afterward and on the 4th day of May, 1880, said Babcock and wife executed a quitclaim deed conveying and quitclaiming said premises to the complainant, which deed was delivered to the complainant a few days after the date last mentioned, but) was not placed on record until March 8,1883. The buildings on said premises consisted of a house and barn, and the complainant continued in possession of said premises, residing in a portion of the house and renting the residue, and occupying the barn as an office and place of business until May, 1879, at which time he removed from the house but retained and has since continued to retain the exclusive possession of the barn, and was so in possession thereof at the time of the commencement of the foreclosure proceedings hereinafter mentioned.

On the 16th day of December, 1881, said Mindwell L. G. Patton filed her bill in chancery in the Circuit Court of Cook county against Thomas W. Saunders, Mary P. Saunders, O. K. A. Hutchinson, the trustee, William M. Luff, his successor in trust, and Simeon Babcock, for a foreclosure of the last mentioned deed of trust, and for a sale of said premises for the amount due and unpaid thereon. The complainant was not made a party to the foreclosure suit and did not appear therein, though he at the time was in open and visible possession of said barn under the deed from Babcock, and claiming title thereunder to the whole of said premises.

Such proceedings were thereupon had in the matter of said foreclosure suit, that on the 1st day of March, 1882, a decree was entered finding the amount due the complainant therein to be $2,980, and ordering a sale of said premises by the master for the satisfaction thereof, and in pursuance of said decree said premises were sold by the master April 1, 1882, for $3,087.35, the full amount of the decree, interests and costs, said Min dwell L. G. Patton becoming the purchaser, and a certificate of purchase being issued to her. The bill alleges that said premises are worth at least $6,000.

The prayer of the bill is, in substance, that an account be taken of what is due on the notes and deed of trust, and that a day be given the complainant to pay the amount found to be due, and that, in default of such payment, the premises be sold as in cases of mortgage foreclosures; that the decree obtained upon the bill filed by said Patton be declared, as to the complainant, a nullity, and no bar to his right to redeem, and that the master be directed to refrain from executing any deed thereunder, and that said certificate of purchase be surrendered for cancellation, and also a general prayer for relief.

Answers and replications were duly filed, and the cause coming on to be heard on pleadings and proofs, the court found that the complainant was entitled to redeem from said deed of trust; and the court having subsequently found that there was due said Mindwell L. G. Patton on said note and deed of trust the sum of $2,947.71, a decree was entered November 2, 1885, that the complainant be allowed to redeem from said trust deed by paying to the clerk of the court within twelve months from the date of the decree, said sum of $2,947.71, with interest at the rate of six per cent, per annum and costs; that on payment of said sum, interest and costs within said twelve months, the decree in the foreclosure suit of Patton v. Saunders, et al, and the sale thereunder, be set aside, and said trustee execute a proper release of the trust deed; that if the complainant should not so redeem said premises within the time so limited, his bill should be dismissed and he thenceforth stand absolutely barred and foreclosed from all equity of redemption in and to said premises, and that the master execute a deed under said foreclosure sale to said Patton or her assigns. The complainant brings the .record to this court by writ of error.

Since the entry of the decree and prior to the suing out of the writ of error, said Mindwell L. G. Patton died, leaving a last will and testament, by which she appointed John Patton and John K. Patton her executors. The plaintiff in error, after suing out his writ of error, suggested the death of said Mindwell L. G. Patton, and took out a scire facias against said executors, making them parties to his writ. Said executors, though not served with process, have voluntarily come and entered their appearance, and have submitted themselves to the jurisdiction of this court as defendants to the writ of error. The plaintiff in error now comes and suggests that said executors are not proper parties, for the reason that 'they are non-residents of this State, and have not taken out letters testamentary in this State, but were appointed executors by a court of another State.

Wéhave grave doubts whether the plaintiff in error is in a position to question the official character of said executors or their right to appear as defendants to his writ. By his suggestion filed at the time he sued out his scire facias against them, he has solemnly admitted of record that they are the executors of the last will and testament of said testator; and by making and retaining them as parties, he is estopped, as it would seem to us, to question their right to represent the estate of their testator in this proceeding. If he is of the opinion that they are improper parties, he has the power at any time before final judgment on his writ, to dismiss them out of court and take measures to have such persons as he may conceive to be proper parties substituted in their place. So long as he continues to prosecute them as defendants, we can not see how he can be at liberty to insist they are not proper defendants.

But we are of the opinion that said executors are proper parties. Section 43 of the statute in relation to the administration of estates gives express authority to executors appointed in other States to prosecute suits in this State to enforce claims of the estate of the deceased, in the same manner as if letters testamentary had been granted them under the provisions of the laws of this State. It is objected that, while they may prosecute suits in this State, there is no statute authorizing suits to be brought against them. It may well be doubted whether such statute is necessary, but if it should be admitted that it is, it would be a very narrow construction of the statute we now have, to hold that, under its provisions, a foreign executor can appear in the courts of this State only in those proceedings where he is in form the plaintiff, or the one who originates and sets such proceedings on foot. Numberless eases arise, both at law and in equity, where a party who is in form a defendant, is called upon to defend, protect and even prosecute affirmative rights and claims which are the subjects of the litigation. We see no reason for holding that a foreign executor may not, under the statute, appear in court in any form in which it may become necessary for him to appear in order to properly prosecute or enforce any of the claims of the estate of his testator. If so, he may often appear as a defendant. Take the ordinary case of the foreclosure of a mortgage by a foreign executor. There he may tile his bill and obtain his decree fora foreclosure and a sale of the mortgaged premises, and if upon the entry of the decree the mortgagor should sue out a writ of error to have the cause removed to an appellate court, would any lawyer say that the complainant below would not be a proper defendant to the writ? Nor would the case be different where the testator dies after the decree and before the issuance of the writ of error. It is true the present proceeding is a bill to redeem rather than a bill for a foreclosure, but the presence of the mortgagee or her legal representative is just as essential to the collection of the mortgage, as it would have been if the bill had been for a foreclosure. The executors are here for the purpose of enforcing a claim of the estate of their testator, and we think they may fairly he held to be parties within the provisions of section 42 of the statute.

Only two errors are assigned upon which the reversal of the decree is sought, viz., 1, the refusal of the court to decree a sale of the mortgaged premises as in cases of ordinary mortgage foreclosures, with the rights of redemption provided by statute, and 2, the exclusion of the evidence of certain judgments against the complainant.

In respect to the first assignment of error, it might be sufficient to say that the decree is in the usual form of decrees upon bills to redeem. It is the general practice of courts of equity in relation to bills of this character, after ascertaining the amount due upon the mortgage, to fix the time within which the complainant shall pay the mortgage debt, and the usual form of the decree is, that he be allowed to redeem by paying that amount within the time specified, together with costs, and that upon his doing so the defendant shall discharge the mortgage, and that upon default of such payment, the bill he dismissed with costs. 2 Barb. Ch. Prac., 199; 2 Daniell’s Ch. Plead. & Prac., 998; 2 Jones on Mortgages, § 1106, and authorities cited. The time within which the redemption is to take place rests within the sound discretion of the court, in view of all the circumstances, but the time which seems to have been usually adopted by the courts is six months. (See authorities above cited.) In the present case the court gave the plaintiff twelve months, the full period of redemption given by the statute to the owner of the equity of redemption after .a foreclosure sale, to redeem from the deed of trust.

Ho circumstances are shown, so far as we can see, which should take the case out of the usual rule applicable to bills of this character. It is true, if the complainant fails to pay the amount found due within the time allotted by the court, the decree will operate as a foreclosure of the mortgage. The complainant’s right to redeem will then be fore ver barred, and can not be set up again in any form in the future. But such is the ordinary result of decrees upon bills to redeem, where the complainant fails to avail himself of the opportunity to redeem given him by the decree.

It is insisted that, because the case is not one where a court of equity would have decreed a strict foreclosure at the suit of the mortgagee, it should not have entered a decree upon a bill to redeem which may have the effect of such a foreclosure. It has never been held, so far as we are aware, that bills to redeem are governed by the same rules as bills for a strict foreclosure. In this State, in view of our statute, it is offiy in exceptional cases, where the interest of both parties manifestly requires it, that strict foreclosures will be decreed; as, where it appears that the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of his debt. But such foreclosures are not proper, as a general rule, where there are incumbrances upon the property, or creditors, or purchasers of the equity of redemption. Farrell v. Parlier, 50 Ill. 274; Johnson v. Donnell, 15 Id. 97. No such restrictions, however, have ever been imposed upon the power of courts of equity to entertain bills to redeem. In such cases there is no inquiry as to the value of the property as compared with the amount of the incumbrance, nor as to whether there are purchasers, creditors or other incumbrancers. The material question is, whether the complainant is entitled to redeem from the incumbrance, and if such right is established, he is permitted to redeem, irrespective of the relative value of the property, or the claims of third persons.

But it is suggested that the power of the court, in cases of bills to redeem, to enter a decree which may have the effect of a strict foreclosure, arises from the fact that, ordinarily, the complainant makes an express offer in his bill to do equity by paying the amount which may be found due; in other words, that he comes into court professing that his money is ready, saying: “ There is my money—give me my estate;” and that the court has the right to take him at his word and limit his relief to the redemption which he offers to make, and as the present bill contains no specific offer to pay the redemption money, a different decree is required. It is sufficient to say in reply to this suggestion, that an offer to redeem in a bill of this character, is neither necessary nor material. As held, in Barnard v. Cushman, 35 Ill. 451, the right to redeem does not depend upon any offers or concessions which the complainant may make in his bill, but upon the fact that he is the owner of the equity of redemption, and has the right to discharge the incumbrance thereon; that such offer would not place him under any greater or new obligations to pay the debt; that it would in no way tend to establish the complainant’s right, or confer upon the court any power which it would not otherwise have, and that it would be of no conceivable benefit or advantage to the defendant to have such offer made. See, also, Dwen v. Blake, 44 Ill. 135.

The question then is, whether, upon a bill to redeem, where there are no peculiar facts and circumstances taking the case out of the ordinary rule, the complainant can claim as of right' to have a decree entered for the sale of the mortgaged premises as in cases of foreclosure, subject to the statutory right of redemption. We are referred to some cases in Virginia and ¡North Carolina from which it would appear to have sometimes been the practice in those States to adopt that procedure, but so far as our examination of the decisions has gone, it has not prevailed elsewhere, the general current of authority in the other States being the other way. Our attention is called to the case of Brown v. Gaffney, 28 Ill. 149, as sustaining the complainant’s position. It appears from the reporter’s statement of that case, that the decree permitted a redemption within thirty days, and provided that in case of a default the premises should be sold, subject to the statutory redemption. The court, in the opinion, however, make no reference to that feature of the decree, nor* does the report of the case show that it was even called to their attention. The facts were somewhat peculiar and exceptional, possibly justifying the decree as it was framed. But even if the case could be held to be an authority in favor of the proposition that it is not error, on a bill to redeem, to order a sale, which we think it can not, it would then come far short of being an authority bearing upon the converse proposition that it is not error to adopt the usual practice and refuse to order a sale.

We are unable to perceive any error in the exclusion of the evidence of judgments against the complainant. It should he observed that none of the judgment creditors are in court asking for any relief, nor are said judgments set up or in any way alluded to in the pleadings. The evidence of said judgments was offered apparently upon the theory that the bill was in substance a bill for a strict foreclosure, and subject to all the incidents and restrictions by which that species of remedy is surrounded. That such theory was erroneous sufficiently appears from what we have already said. We find no error in the record, and the decree will therefore be affirmed.

Decree affirmed.


text:
    Albert J. Brumbach v. Samuel Flower.
    1. Election of cause of action—Discontinuing action.—A vendor who brings an action of assumpsit, based upon a contract of sale, which action does not proceed to judgment but is discontinued, may then maintain an action on the case to recover damages for fraud and deceit on the part of the vendee, which induced the making of said contract of sale on the part of the vendor. The action of assumpsit having been discontinued, is no waiver of the tort.
    2. Variance.—The variance in this case is one in mere phraseology, and will he disregarded.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed October 27, 1886.
    Mr. John B. Skinner, for appellant;
    that the mere bringing of a suit in assumpsit, by a creditor who has two concurrent remedies, the other being in tort for fraud, is not, of itself, sufficient to operate as an irrevocable election on the part of the creditor to waive the tort, cited Gibbs v. Jones, 46 Ill. 319; Bk. of Beloit v. Beale, 7 Bosw. (N. Y.), 611; 1 Chitty on Pleading, 243 (7th Am. Ed.); Wright v: Ritterman, 4 Robertson (N. Y.), 704; Smith v. Scantling, 4 Blackford (Ind.), 443.
    Messrs. Moses, Newman & Reed, for appellee;
    as to the consequences attaching to a creditor suing in assumpsit, cited Gray v. St. John, 35 Ill. 222.
    In case of amendments, a party can not substitute a wholly different cause of action in place of the one which he attempted to set up in his original pleading: Supervisors v. Decker, 34 Wis. 378; Anderson v. Case, 28 Wis. 505; Pomeroy’s Remedies, §§ 567-573.
   McAllister, P. J.

The appellant, Brumbach, Sept. 22, 1874, filed his affidavit for a capias ad respondendum, against appellee, Flower, for fraud in the latter in buying a bill of goods of the former, amounting to §513.05, and also a declaration in assumpsit for goods sold and delivered. The capias was awarded and issued, on which the defendant was arrested and gave bail Afterward, Nov. 29, 1884, said capias was, on motion of defendant, quashed by the court; and Dec. 20,1814, on motion of plaintiff, the court gave him leave to amend by changing the form of action into case for fraud and deceit in the purchase of said goods, and to recover damages therefor, which was done; and to such amended declaration the defendant pleaded not guilty. To the order of the court granting such leave, no exception was preserved.

The cause was, by agreement, submitted to the court upon an agreed statement of facts. The court found the defendant not guilty, upon the sole'ground that the plaintiff, by bringing an action of assumpsit based upon the contract of sale, thereby precluded himself by his own election, from afterward maintaining an action on the case to recover damages for fraud and deceit in the purchase of the goods.

Whether or not that ground is maintainable, is the principal question presented by this record. There is also a question of alleged variance between one allegation of the declaration and the proof, reserved by the agreed case.

Did the act of bringing the action of assumpsit based upon the contract of sale, and which did not proceed to judgment, but was discontinued, preclude the plaintiff from maintaining an action on the case to recover damages for fraud and deceit on the part of the buyer, which induced the making of said contract of sale on the part of the seller? We are clearly of opinion, upon both principle and authority, that it did not.

It is true that by bringing the action of assumpsit, the plaintiff elected to affirm the contract. That, probably, would preclude him from afterward maintaining trover or replevin for the goods, because-either of those actions would be based upon the theory that he had elected to rescind the contract.

We regard the doctrine as fully supported by authority, that a party defrauded in a contract may affirm it in the most unequivocal way, and yet maintain an action to recover damages for the fraud, by which he was induced to enter into such contract. In Allaire v. Whitney, 1 Hill (N. Y.), 486, the court said: “ When a man is drawn into a contract of sale or demise by fraud, a right of action attaches immediately, as much so as if trespass had been committed against him; and though he may affirm the transfer of interest and take the property, yet waiver is no more predicable of the cause of action than where a man receives a delivery of goods which had been tortiously taken from him. The vendor or lessor was a wrongdoer when he committed the fraud; and no act of the injured party, short of a release or satisfaction, will bar the action, though it may mitigate the amount of damages.”

When this same case was again before the court, Whitney v. Allaire, 4 Denio, 554, the general doctrine was thus stated: “A party defrauded in a contract has his choice of remedies. He may stand to the bargain, even after he has discovered the fraud, and recover damages on account of it, or he may rescind the contract and recover back what he paid or sold.” Morey v. Pierce, 14 Bradwell, 91, adopts the doctrine of those cases. 2 Kent (Holmes’Ed.), 480, note c; Story on Sales, § 447; Benj. on Sales (2d Am. Ed.), § 452, note a.

The plaintiff, by bringing his action of assumpsit, which did not proceed to judgment, stood by the bargain. The right to do so was not inconsistent with his right to sue for the damages occasioned by the fraud and deceit of the defendant, whereby he was drawn into that bargain. If the action in assumpsit had gone to judgment, it would probably have been a bar to the action for the fraud. But having been discontinued, it was no waiver of the tort.

The declaration alleged the representation of the defendant to plaintiff to be: “ That defendant wrote and sent to the plaintiff a letter, dated December 31, 1883, giving said statement as requested by plaintiff, and in said statement defendant r presented to plaintiff that the defendant had a stock of merchandise then on hand worth fifteen thousand dollars, and that his, defendant’s, indebtedness was about one thousand dollars.” A letter, bearing date as alleged, was offered in evidence, which contained these words: “My stock is just now worth §15,000, and owe §1,000; comes due about March 1st.”

We think there was no substantial variance between the al'egation and proof. The statement was calculated to convey to plaintiff’s mind the idea that §1,000 comprised substantially all his indebtedness. Such a variance in mere phraseology will be disregarded. Hawkins v. Appleby, 2 Sandford, 421.

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

Judgment reversed.