author: MoAllisteb, P. J.

text:
    Louisa S. Glade v. Kasper G. Schmidt.
    1. Deed poll—Acceptance by grantee—When assumpsit will lie.—Where a grantee accepts a deed poll, reserving certain duties expressly to be performed by such grantee, assumpsit will lie for the non-performance of them.
    2. Decree in chancery, conclusive upon what.—A final decree upon a bill in equity is conclusive upon all the parties in respect to all matters of claim and defense determined by it, and as to all incidental matters which the parties were bound to litigate and bring to decision. Neglect to present a claim which might have been litigated in a bill in equity until after final decree, will generally be regarded as a waiver of the claim.
    3. Decree—When a bar.—In order to be a bar to a new suit, the decree must not only be substantially between the same parties and for the same subject-matter, but it must also be in its nature final, or afterward made so by order of the court. As the liability on the part of the defendant to pay the indebtedness of the firm in question had its origin entirely after the bill in chancery suit was filed, and arose from a new contract between the parties to this suit, the decree in the chancery suit is not a bar.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, J udge, presiding.
    Opinion filed June 25, 1884.
    This was assumpsit upon a special case, set out in the declaration, and brought by Louisa S. Glade, as the executrix of the will of her husband, Herman O. Glade, deceased, against Kasper G. Schmidt, who had been in partnership with said Glade in the business of manufacturing and selling lager beer at Chicago, for several years prior, and up to. the time of the death of Glade, to recover the sum of $1,881.93, which was owing by said firm of Schmidt & Glade to the latter at the time of his death, and which it was claimed the said Schmidt had, upon a new and sufficient consideration, assumed and agreed to pay, so that assumpsit would lie. The plea, the general issue, with stipulation to admit thereunder any special defense. The case was tried by the court without a jury, and it was shown in evidence that prior to February 12,1882, the said firm of Schmidt & Glade existed as aforesaid; that being so in existence on that day, Glade died testate, in Chicago. His will was afterward admitted to probate, and letters testamentary issued to the plaintiff, his widow; that by such will all of the testator’s estate, of every description, was devised and bequeathed to plaintiff; that, June 30, 1882, the plaintiff, as such executrix, brought her bill in chancery, in the Circuit Court of Cook county, against Schmidt and others, to wind up the affairs of said partnership; to collect and sell the partnership assets; to pay the debts of the firm, and make distribution of the surplus between complainant and Schmidt, as their respective rights might appeal1. While that suit was pending, the plaintiff and Schmidt entered into an agreement which was to he filed in that case and be a substitute for pleadings and evidence, and be the basis of the decree in said cause. This agreement provided, among other things, that such decree should direct the sale of the brewery business, good will, and all the real and personal property of such firm to Schmidt, except doubtful accounts, subject to all outstanding obligations and liabilities of said firm and all liens upon said premises; that the amount Schmidt was to pay therefor should be ascertained by arbitrators chosen as therein provided; that Schmidt should pay plaintiff one half of the amount so ascertained, after deducting all the liabilities of said firm; that the individual accounts of Schmidt & Glade, respectively, should be ascertained from the books, and ; the amounts due by or from them, respectively, should be treated as tire accounts of strangers. The agreement prescribed the form of the report of the arbitrators, thus:
    “ We, the undersigned, arbitrators, hereby appraise and find the entire value of the brewery business, real and personal property and assets of the late firm of Schmidt & Glade, on -, 1882, inclusive of the good will of said business, in the hands of Kasper G. Schmidt, as the purchaser thereof, at the sum of--dollars, after deducting the liabilities of said firm, and also deducting the compensation of said Schmidt for his services as manager and receiver as aforesaid.” (Rec.)
    It also contained the following: 61 Thirteenth. Upon the filing of said report of the said arbitrators in this cause, the said court shall enter a decree for the sale of said property, real, personal and mixed, and of all things pertaining to said brewery as aforesaid, to said Kasper G. Schmidt, for the sum so reported by the said arbitrators, subject, however, to the payment of all the liabilities of said firm of Schmidt & Glade.”
    The arbitrators having filed their report, a decree was entered upon the above agreement, and in pursuance thereof, directing a sale of the property, etc., to Schmidt, for an amount, and to be paid as specified therein, and that upon the same being paid to her, the said Louisa S. Glade, as such executrix, etc., malte and deliver to said Schmidt a deed of conveyance of the real estate aforesaid, and a bill of sale of all the personal property aforesaid. “ That said deed and bill of sale so to be executed and delivered by said complainant, shall be made subject to the liens and incumbrances as aforesaid, and it shall also be provided therein that he, the said Kasper G. Schmidt, shall assume and agree to pay all of the mortgages, trust deeds, liens and incumbrances upon said premises and property, and all the liabilities of the late firm of Schmidt c& Glade, and of the said Kasper G. Schmidt, surviving partner of said late firm, and as receiver.” It appeared that both parties not only agreed to this decree, but that both acted under it. After the decree and in pursuance thereof, the said Louisa S. Glade, as executrix, etc., executed to Schmidt, and he accepted, the deed of conveyance, also the bill of sale, each containing the provision that he, Schmidt, assumed and agreed to pay all the liabilities of the late firm of Schmidt & Glade. Both instruments were signed and sealed by the said Louisa S. Glade, but neither of them by Schmidt.
    It was stipulated upon the trial of this present action at law, that, at the time of his death, the books of the firm showed a balance in favor of said Herman 0. Glade, deceased, due from said firm, amounting to §1,881.93. The court was asked by plaintiff’s counsel to hold the following propositions as the law of the case:

      “ 1st. If, by the stipulation between the parties in the case of Louisa S. Glade against Iiasper G. Schmidt and others, in the Circuit Court of Cook county, the defendant in this cause assumed and agreed to pay all the liabilities of the firm of Schmidt & Glade, and if by the same stipulation the amount due to either partner by the firm of Schmidt & Glade was to be considered and treated as the accounts of strangers, and if said stipulation was carried into effect and an appraisement made by the arbitrators in pursuance thereof, and a deed or bill of sale made to said Schmidt by said Louisa S. Glade, in which said Schmidt agreed to pay all the liabilities of said firm, then the amount admitted herein to be due H.I O. Glade in his lifetime from said firm, became thereby a legal liability from said defendant to said plaintiff, and plaintiff is entitled to sue for and recover the same in this action.”
    Upon which proposition the court made the following indorsement:
    “Refused: Chiefly because the whole matter should have
    been adjusted by the chancellor in the chancery cause.”
    The other proposition is as follows:
    “ 2d. Although the court in chancery where said bill was filed by said Louisa S. Glade against K. G. Schmidt et al., for an accounting, etc., may have had the right to proceed and enforce the collection of the amount due said plaintiff on account of any balance due the said H. O. Glade, prior to his decease, from the firm of Schmidt & Glade, yet if there was anything due the said H. (). Glade prior to his death, from tile said firm of Schmidt & Glade, which said Schmidt has assumed and agreed to pay the plaintiff since the filing of said bill for an account, she still has the right to resort to this court and enforce the same liability as a legal liability due her,” which was marked “ refused ” by the court.
    The court found the issues for the defendant and gave judgment accordingly. The plaintiff brings the case here by appeal.
    Messrs. Rosenthal & Pence, for appellant;
    that the amount admitted to be due Glade at the time of his decease is a liability of the firm, cited Jones v. Bliss, 45 Ill. 144; Wiggins v. Cummings, 8 Allen, 353.

      By agreement between the parties, the debt has become a legal liability: Hobart v. Howard, 9 Mass. 303; Wiggins v. Cummings, 8 Allen, 353; Parsons on Partnership, 282.
    Mr. William Yocke, for appellee;
    as to res adjudicata, cited Camp v. Morgan, 21 Ill. 255; Casselberry v. Forquer, 27 Ill. 172; Lucas v. LeCompte, 42 Ill. 305; Hanna v. Read, 102 Ill. 596; Rugger v. I. & St. L. R. R. Co., 103 Ill. 449; McCullough v. Clark, 41 Cal. 298; Whitney v. Stevens, 97 Ill. 487; Pool v. Docker, 92 Ill. 509; Lloyd v. Lee, 45 Ill. 277; Bancroft v. Winspear, 44 Barb. 209; Goodrich v. Yale, 8 Allen, 454; Trask v. H. & N. H. R. R. Co., 2 Allen, 331; Hites v. Irving’s Adm’r, 3 Ohio, 288; Simes v. Zane, 24 Penn. 213; Rockwell v. Langley, 19 Penn. 508.
   MoAllisteb, P. J.

'We are of opinion thaffthe evidence, on the trial, established a cause of action in assumpsit in favor of the plaintiff, to which no legal defense was shown.

It appeared from an express admission by counsel on the trial, that the firm of Schmidt & Glade was indebted o tliet latter, at the time of his death, in the sum of one thousand eight hundred eighty-one dollars and ninety-three cents. Then by the deed and the bill of sale, executed by the plaintiff and delivered to and accepted by the defendant, there was reserved the duty, on the part of the defendant, of paying all the liabilities of said firm, and of him, said Schmidt, as surviving partner. The defendant, Schmidt, not having signed or sealed either of said instruments, covenant could not be-maintained against him upon either. But it is well settled,, that where a grantee accepts a deed poll, reserving certain' duties expressly to be performed by such grantee, assumpsit will lie for the non-performance of them. Gale v. Nixon, 6 Gowen, 445; Goodwin v. Gilbert, 9 Mass. 510; Hurst v. Rodney, 1 Wash. 375; Guild v. Leonard, 18 Pick. 511; Nugent v. Riley, 1 Metc. (Mass.) 117; Newell v. Hill, 2 Id. 180.

We are also of opinion that the decree of the circuit court in the chancery shit, between the parties, constituted no bar to a recovery in this action of assumpsit for the non-performance of the duty arising upon the reservation contained in said deed and bill of sale respectively, for the reasons, (1) that such duty was created by an instrument made after the decree; (2) it was purely a legal duty, and not cognizable by a court of equity. In fact, the liability bn the part of the defendant to pay the indebtedness of the firm of Schmidt & Glade, in question, had its origin entirely after the bill in the chancery suit was filed, and arose from new contractual relations between the parties to this suit. It is the rule that a final decree upon a bill in equity is conclusive upon all the parties in respect to all matters of claim and defense determined by it, and as to all incidental matters which the parties were bound to litigate and bring to decision. Neglect to present a claim, which might have been litigated in a bill in equity, until after final decree, will generally be regarded as a waiver of the claim. Ashnelot Railroad Co. v. Cheshire R. R. Co., 59 Rew Hamp., and authorities cited; Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 U. S. 688; Clemens v. Clemens, 37 N. Y. 59. But to come within this rule, the matter claimed to be barred must be such that the party was bound to present it. Malony v.Horan, 49 N. Y. 115; Barwell v. Knight, 51 Barb. 267.

Row, if the decree in the chancery suit was a final decree, the deed poll from plaintiff to defendant and accepted by him, which-contained the reservation upon which the duty on the part of defendant arose, for the non-perfonnance of which this action of assumpsit was brought, was not made until after such final decree, and the duty was a legal one. The plaintiff 'was not, therefore, bound to present the claim in the chancery suit. But the decree was not final as to the matter in question and several other matters. In order to be a bar to anew suit, the decree must not only be substantially between the same parties, and for the same subject-matter, but it must also be in its nature final, or afterward made so by order of the court; for otherwise it will not "be a bar. Therefore, a decree for an account of the principal and interest due on a mortgage, and for a foreclosure in case of non-payment, can not be pleaded to a bill to redeem, unless there is a final order of foreclosure. Story’s Eq. PI. § 791.

The instrument creating the legal duty having been made after the decree, and'not having been brought before the court of chancery, if it had been cognizable there, or in any manner passed upon, it is inconceivable how such decree could be a bar.

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

Reversed and remanded.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Seth F. Hanchett v. Riverdale Distillery Co. et al.
    1. Evidence—Fraud.—Another act of fraud is admissible to prove the fraud charged, only where there is evidence that the two are parts of one scheme or plan of fraud committed in pursuance of a common purpose.
    2. Evidence—Notice.—The court is of opinion that the evidence in this case does not disclose circumstances from which notice to appellant of the fraudulent representations of his vendor could he inferred.

      'ó. Sale—Rescission.—Where one purchases goods upon false representations as to his financial ability, and the vendor, in reliance upon such representations, makes a sale, such a sale is voidable at the option of the vendor. The election to rescind or not rescind being once made is final and conclusive.
    4. Rescission op contract—Opper to return consideration.— Where parties were attempting to rescind a contract of sale and sue in replevin, and a portion of the property replevied was merchandise for which a certain note was given, and such note was not tendered before or during the trial. Held, that as to that sale, the attempted rescission was ineffectual, and plaintiff was entitled to damages for the value of that portion replevied. Qucere, whether an offer at the trial to return the note would be sufficient.
    5. Election to appirm by bringing attachment suit.—Where a party being fully aware of the fraud for which he subsequently attempted to rescind a sale, brought an attachment suh, before any of the notes given ior the goods were due. Held, that this was an irrevocable election to treat the transaction as a sale, and such party could not afterward rescind the sale and recover the goods sold. He can not recede from such election, because after the institution of the attachment suit, he discovers where a portion of the property has been resold and can be reached.
    6. Error—Abstract.—It is not the practice to cinsider errors which are assigned by a party upon matters which he does not see fit to include in his abstract.

      Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed May 20, 1884.
    Messrs. Keaus & Maybe, for appellant;
    as to a sale being voidable, where goods are sold in reliance upon fraudulent representations, cited Benjamin on Sales, § 433; Gray v. St. John, 35 Ill. 222; Bowen v. Schuler, 41 Ill. 192; Ryan v. Brant, 42 Ill. 78.
    A suit brought by the vendor against his vendee for the price of the goods with knowledge of the fraud by which the sale was effected, affirms the sale, and he can not thereafter rescind the same: Benjamin on Sales, § 442; Adler v. Fenton, 24 How. 407; Dibblee v. Sheldon, 10 Blatch. 178; Stoutenburgh v. Konlde, 15 N. J. Eq. 33; Bulkley v. Morgan, 46 Conn. 393; Butler v. Hildreth, 5 Met. 49; Conihan v. Thompson, 111 Mass. 270; Morris v. Rexford, 18 N. Y. 552; Moller v. Tuska, 87 N. Y. 166; Emma Mining Co. v. Emma Co., 7 Fed. Rep. 424; Dalton v. Hamilton, 1 Hannay (N. B.), 422; Moriarty v. Stofferan, 89 Ill. 528; Bigelow on Fraud, 425; Bigelow on Estoppel, 562 (3d Ed.); Story on Sales, Sec. 446; Derickson v. Krause, 4 Bradwell, 507; Kellogg v. Turpie, 93 Ill. 265; Kellogg v. Turpie, 2 Bradwell, 55; Gray v. St. John, 35 Ill. 222, 239; Herrington v. Hubbard, 1 Scam. 569, 573.
    As to evidence of other frauds committed: Bigelow on Frauds, 480; Jordan v. Osgood, 109 Mass. 157; Simpkins v. Berggren, 2 Bradwell, 101; Johnston v. Beeney, 5 Bradwell, 601; Booth v. Powers, 56 N. Y. 22.
    Mr. Edmund Jussen, for appellees;
    that the pending of an action upon contract for goods sold and delivered will not prevent the bringing of an action for the conversion of the same goods, and at any time previous to an adjudication, a party may discontinue the one and proceed with the other, cited Wright v. Ritterman, 4 Robertson (N. Y.), 704; Butler v. Hildreth, 5 Metcalf, 49.
   Bailey, J.

This is an action of debt, brought by Seth F. Ilancliett, sheriff of Cook county, for the use of Joseph Massarek, against the Riverdale Distilling Company, as principal, and Patrick Cavan agh, as surety on a replevin bond. It appears that, on the 24th day of January, 1883, said distilling company commenced a suit in replevin against said Massarek, to recover fifty barrels or packages of rectified liquors; and that in execution of the writ the sheriff took from Massarek and delivered to the distilling company, sixteen barrels of various kinds of liquors, of the value, as shown by the evidence in this suit, of $770.91. The replevin suit was afterward dismissed at the plaintiff’s costs without a trial, and thereupon this suit was brought.

The evidence tends to show that for a considerable time prior to the transactions in question, said company had been selling liquors to one Moritz Tausig, a brother-in-law of Massarek, on credit, taking his promissory note at each sale, due in thirty days; and that on the 2d or 3d day of January, 1883, he was owing the company about $1,100, no part of which was due; that Tausig, desiring further credit, made certain representations to the company as to his financial circumstances and responsibility, in reliance upon which the company sold him liquors on credit, on the 3d, 8th, 12th and 18th of January, 1883, each time about the same amount, and of the value, in the aggregate, of $2,220.28, and at the time of each sale took his promissory note due in thirty days.

On the 22d day of January, 1883, Tausig failed in business, and on the day following, said company having learned, as it claims, that the representations made to it by Tausig were false and fraudulent, sued out a writ of attachment against his property, for the recovery of the total amount qf his indebtedness, the same being $3,343.36, none of the notes given for purchases made on or after January 3, 1883, having yet matured. On the 24th day of January, 1883, the attachment suit being still pending, the company having ascertained, as it claims, that a portion of the liquors sold to Tausig on or after January 3d had been purchased by Massarek, with knowledge of Tausig’s fraud, undertook to disaffirm its sale to Tausig, and thereupon replevied from Massarelc the liquors in question in this suit, claiming them to be the identical liquors sold to Tausig.

At the trial, as proof of damages, the plaintiff, in addition to showing the value of the liquors replevied, gave evidence that Massarelc was compelled to pay $100 attorney’s fee and $1.50 costs in the replevin suit, and the jury found the issues for the plaintiff and assessed his damages at $101.51, thus giving him nominal damages for said liquors.

For the purpose of establishing Tausig’s fraud and Massarelc’s knowledge and participation in it, the defendants were permitted, against the objection and exception of the plaintiff, to prove certain alleged fraudulent transactions between Tausig and Massarelc in the year 1877, some six years prior to the commission of the fraud alleged in this suit. Said evidence was to the effect that, in 1877, Tausig failed and transferí cd his business to Massarelc who had charge of it five or six months; that he then transferred it to his sister, Tausig’s wife, who carried it on four or five months longer, and then transferred it back to Tausig, he in the meantime having obtained his discharge in bankruptcy. Ho connection whatever is shown between those transactions and the one involved in this suit. The admission of this evidence was, in our opinion, clearly erroneous.

In Jordan v. Osgood, 109 Mass. 457, the question of the admissibility of evidence of this character arose upon a state of facts quite analogous to those in this suit, and the court in holding that such evidence was inadmissible, says: “ The fact that a defendant has committed a similar but distinct crime or fraud, is not competent to prove that he committed the particular crime or fraud with which he is charged. It has no tendency to prove the proposition to be established by the plaintiffs, but is equally consistent with an affirmative or negative decision of that proposition. The effect of such proof may be to produce such a state of mind in the jury, to whom it is addressed, that a less weight of testimony satisfies them than would otherwise be necessary to produce conviction; but it does not directly tend to prove or disprove the matter in dispute. The admission of such evidence would introduce a multiplicity of collateral issues calculated- to withdraw the attention of the jury from the real issue in the case; and it would operate unjustly to the defendant, as it requires him to explain his transactions without any notice or opportunity for preparation * * * With others we think the rule to he deduced from the authorities is, that another act of fraud is admissible to prove the fraud charged, only where there is evidence that the two are parts of one scheme, or plan of fraud, committed in pursuance of a common purpose.”

The doctrine so well and clearly stated by the Supreme Court of Massachusetts in the foregoing case, is amply sustained by authority, and receives our entire concurrence.

The evidence admitted in the present case could not but have been prejudicial to the plaintiff. Especially is this so, in view of the extremely meagre and unsatisfactory character of the evidence tending to show knowledge on Massarek’s part, of the fraud alleged to have been committed by Tausig. In fact-, the evidence of the dealings between these parties in 1877, seems to be that on which the chief reliance is placed as proof of notice.

The point is made that Massarek is not shown to be a purchaser for value. lie swears, however, that he paid for said liquors at the time he purchased them, by giving Tausig his bank check for the amount of his purchase. In this he is not contradicted, and the fact of payment must therefore be regarded as established.

lie then being a purchaser for value, before the company cohid rescind the sale to Tausig, and follow the property sold into the hands of his vendee, it must appear, not only that Tausig was guilty of the fraud charged, but also that his vendee was a party to or bought with notice of such fraud. The evidence warranted the jury in finding that Tausig made to said company the representations charged for the purpose of obtaining further credit; that such representations were false, and that the company relying upon their truth, sold to Tausig said liquors on credit. Massarek, however, in his testimony, denies all knowledge of the fraud, and there is no direct evidence that, at the time of his purchase from Tausig, he had any knowledge or "notice that Tausig had made said representations, or that they were false.

But it is claimed that the evidence discloses certain circumstances from which notice may be inferred. Let us see what they are. The counsel for the defendants has grouped them together in his argument, and leaving out of view the dealings between Tausig and Massarek in 1877, they are as follows: 1. Up to the date of Tausig’s failure, Massarek had only a United States license as a wholesale dealer, but upon such failure, he immediately procured a license as a compounder and rectifier. 2. While the deputy sheriff had possession of Tausig’s store under an execution, several barrels of wine arrived, which had been consigned to Tausig, by a Cincinnati firm; that the deputy sheriff refused to pay the freight and take said wine, and that the wine was afterward found in Massarek’s store. 3. Tausig, immediately after his failure, left the city, and for about two weeks thereafter kept himself concealed from his creditors, and after his return, he sold and delivered to his customers some of the goods previously transferred by him to Massarek. 4. Mrs. Tausig, Massarek’s sister, frequently called at Massarek’s store and conversed with him, though the latter swears that she gave him no information’in relation to the insolvency of her husband. These are all the proofs counsel has been able to array on this question.

We are unable to see why these circumstances, whether considered separately or combined, are not quite as consistent with a negative as an affirmative decision of the proposition the defendants were called upon to prove. It should be remembered that the question of fraud by Tausig, in the disposition of his property at the time of his failure, is not in issue-T.iat, if proved, would have formed no ground for a rescission by the distillery company of the sale to Tausig. The only fraud available for that purpose, was that by which the company was induced to part with its property, viz.: Tausig’s false and fraudulent representations as to his pecuniary circumstances. That_ was the specific fraud that the company was called upon to prove, and of that specific fraud it. was bound to charge Massarek with notice. How the conclusion that Massarek, at the time lie purchased the liquors from Tausig, knew that the latter had made these representations, or that such representations were false, can be legitimately or logically drawn from the facts proved, is beyond our comprehension.

The evidence as to whether the liquors replevied from Mas arek were the identical liquors sold by the distilling company to Tausig, is conflicting, and as the jury seem by their verdict to have decided that question in the affirmative, we are not disposed to interfere with their finding in that respect. The evidence, however, shows that if they are the same liquors, all, or at least a portion of them, were those sold to Tausig on the 3d of January. A very serious question arises whether as to any portion of said liquors, and especially as to those sold January 3d, the company took the requisite steps to rescind the sale so as to be entitled to maintain replevin against Tausig or his vendee for the goods sold.

The ordinary rule is, that a vendor, if he undertakes to rescind the contract of sale, must place the other party in statu quo by returning or offering to return whatever of value he has received. Here the company received from Tausig his notes for the price of the merchandise sold him, and it appears that at the time of the trial tiiose notes were still in possession of said company. There is evidence to show, as above stated, that Tausig, immediately after his failure, absconded and remained concealed from liis creditors until some time after the commencement of this suit, so that no opportunity was offered for returning or tendering the notes to him personally, until after suit was brought. It is urged that under these circumstances an offer at the trial to surrender the notes was sufficient, and we are referred to the case of Ryan v. Brant, 42 Ill. 78, which seems to sustain that view. But in Moriarty v. Stofferan, 89 Ill. 538, it is held that a vendor seeking to rescind a sale is not in a condition to bring replevin for the property sold, until he has offered to return the notes given therefor by the purchaser. Without attempting to reconcile the apparent conflict between these decisions, it is sufficient to say that the evidence fails to show any offer to return the note given January 3d. Counsel for the distilling company, during the progress of the trial, tendered the. notes given January 8th, 12th and 18th, but there seems to have been no tender of the other note. A part, at least, of the property replevied being merchandise for which that note was given, it is clear that, as to that sale, the attempted rescission was ineffectual, and as to thatportion of the property replevied, the plaintiff .was entitled to damages for its value.

But we are of the opinion that the distilling company, by bringing the attachment suit against Tausig, affirmed and ratified the sale, and that after such ratification it could not rescind and reclaim the property sold. Where one purchases goods upon false representations as to his financial ability, and the vendor, in reliance upon such representations, makes a sale, such a sale is voidable at the option of the vendor, and he may either rescind the contract and sue to recover back the goods, or he may sue for the purchase money according to the contract of purchase. But a suit brought by the vendor against the vendee for the price of the goods with knowledge of the fraud by which the sale was effected, affirms the sale, and he can not thereafter rescind the same. The election to rescind or not rescind being once made, is final and conclusive. Benj. on Sales, §§ 433, 442. The numerous authorities cited upon this point by counsel for the plaintiff fully sustain the foregoing statement of the law.

The evidence is clear and undisputed that, at the time the attachment suit was brought, the distilling company was fully aware of the fraud for which it afterward attempted to rescind the sale. Such is the testimony of its managing agent, who had charge of the business, and who caused the attachment suit to be commenced, and his evidence is not disputed. Indeed, the bringing of the attachment suit before any of the notes were due, was an election to avail itself of the fraud to the extent of rescinding the credit given to Tausig, and to sue at once for the price of the goods. This was an irrevocable election to treat the transaction as a sale, and it was thus placed beyond the power of the company to afterward rescind the sale and recover the goods sold.

As said in Conihan v. Thompson, 111 Mass. 270: “ The defense of waiver by election arises where the remedies are inconsistent, as where one action is founded on an affirmance and the other upon a disaffirmance of a voidable contract or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all. The institution of a suit is such decisive act, and if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon.”

But it is claimed that this case is taken out of the rule, by the fact that, after the institution of the attachment suit, the company ascertained that a portion of the goods sold to Tausig had been sold by him 'to Massarek, that fact being unknown to the company at the time of bringing the first suit. This, we think, will not avail the defendants. The sale of the goods to Massarek was no part of the fraud. The fraud itself, and all that properly appertained to it, had already been discovered. All the facts upon which the right to rescind or affirm the sale depended were known to the company when, the-first suit was brought. It might, perhaps, have waited ai reasonable time before making its election, to asc'rtiin what liad become of the goods, and what would be its chances of1 recovering them in case of a rescission. But it chose to elect as to its remedy without doing so, and it can not recede from, such election merely because of afterward discovering where a portion of the property could be reached.

The counsel for the appellant have assigned error upon the-giving and refusing of certain instructions to the jury, but in his printed abstract he has included neither the instructions nor an abridgment of them. It is not the practice to consider errors which are assigned upon matters which the appellant, does not see fit to include in his abstract, and for that reason we do not feel called upon to revietv the instructions. Shackleford v. Bailey, 35 Ill. 387; Village of Chatsworth v. Ward, 10 Bradwell, 75. But, for the errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    William L. Glass v. John W. Doane et al.
    1. Sale or mortgage —The test by which to determine whether a conveyance of lands made in consideration of the grantor’s indebtedness to the grantee is a sale or a mortgage, is to be found in the question whether the debt was discharged or not by the conveyance. And this test applies as well to sales and assignments of chattels.
    2. Conditional sale in nature op mortgage—Surplus liable to garnishment.—A failed in business, and on the same day executed judgment notes to B to the amount of his indebtedness to B, and also, by an instrument under seal, sold and assigned all sums of money due upon his open or book accounts, with full power to collect, etc. Subsequently 0, A’s debt- or, sued out an attachment against the property of A, B being named as garnishee. Thereafter, A made a general assignment for (he benefit of his creditors. D, the assignee, thereupon filed an interpleader in thea'tachmen suit, claiming the property garnished in B’s hands as his. Treating the instrument above as a conditional sale in the nature of a mortgage, held, that the. rights of.the garnishee are paramount to those of both the attaching creditor and the assignee, to the extent of A’s indebtedness to him; that the surplus, if any results, is liable to garnishment, and the lien of C, being prior to that of the assignee, his rights would be paramount to those of the assignee.
    Error to the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed May 20, 1884.
    On the 17th day of January, 1882, Henry B. Lockxvood, a merchant of Chicago, failed in business. On the same day he executed two judgment notes, due on demand, one for $54,579.90, payable to the order of Carter, Hawley & Co., and the other for $36,569.76, payable to the order of Carter and Hawley, two of the members of that firm. He also at the same time, by an instrument in writing under his hand and seal, upon a consideration therein expressed, of “ one dollar and other good and valuable considerations,” sold, assigned, transferred and set over to Carter, Hawley and Macy, the members of the firm of Carter, Hawley & Co., “ for their own proper use and benefit,” any and all sums of money then due or "to become due upon the open or book accounts of said Lockwood, giving them full power and authority, for their own use and benefit,” but at their own costs, to ask, demand, collect, receive, compound and give acquittance for the same or any part thereof, and in the name of said Lockwood or otherwise, to prosecute or to withdraw any suits or proceedings at law or in equity therefor. Judgments were immediately entered on said notes, and executions were issued and levied upon the stock of goods of Lockwood, and thereby the sum of $37,607.91 was collected and applied to the judgment in favor of Carter, Hawley & Co., the other execution being returned wholly unsatisfied.
    On the 25th day of January, 1882, John W. Doane & Co. sued out a writ of attachment against the property of Lockwood, claiming an indebtedness of $1,101.42, Carter, Hawley and Macy being named as garnishees, and on the same day the writ was personally served on Carter, no service being had on the other two garnishees. Subsequently, on the 7th day of February, 1882, Lockwood made a general assignment for the benefit of his creditors, Glass, the plaintiff in error, being the assignee.
    On the 13th day of January, 1883, and while the attachment suit was pending, Glass appeared and filed his inter-pleader, claiming the property, credits and effects attached and garnished in the hands of Carter, Hawley and Macy as his, and praying for judgment accordingly. Issue was taken on the interpleader by the plaintiffs in the attachment, and the same came on to be heard by the court without a jury, upon a stipulation by the parties as to the facts. By the stipulation the matters above set forth are admitted, and it is also stipulated that on the 13th day of February, 1882, Glass, the assignee, filed a bill in the Circuit Court of Cook county against Carter, Hawley and Macy to set aside the transfer to them of January 17, 1882, and for an accounting as to the proceeds of all the assets of Lockwood that had come into their hands, but it does not appear what the averments of the bill were, nor what, if any, proceedings had been taken in the suit. It is further stipulated, that since the filing of said bill, the plaintiff in the attachment had proved before the assignee the same claim on which they were seeking judgment in the attachment suit, and that the assignee had entered his motion in the county court for a rule on them to cither dismiss their claim there or to dismiss the suit, but the ruling of the county court on that motion is not shown. It is also admitted that no dividend has been declared or paid by the assignee on any claim, and that he has no cash assets in his possession derived from the estate; also, that the assignee, immediately upon the assignment being made to him, qualified, and filed his proper bond. The foregoing being all the facts admitted or proved at the hearing, the court found the issues for the plaintiffs in the attachment and dismissed the inter-pleader, and the assignee brings the record to this court by Writ of error.
    Messrs. Isham, Lincoln, Bubey & Ryeeson, for plaintiff in error;
    that defendant in error, as a garnishing «’editor, has no greater rights than Lockwood, cited Richardson v. Lester, 83 Ill. 55; Crownover v. Bamburg, 2 Bradwell, 162; Webster v. Steele, 75 Ill. 544.
    Messrs, Flowee, ReMY & Geegoey, for defendants in error,
   Bailey, J.

By the interpleader, the assignee tinder Lockwood’s general assignment for the benefit of his creditors, is seeking to contest the right of the attaching creditors to hold, under their writ of attaehmemt, the property, credits and effects attached in the hands of the garnishees, In point of tíme, the attachment writ has the priority, and it follows that if the assets sought to be reached, are subject to garnishment, the rights of the attaching creditors are superior to those of the assignee,

It should be observed that upon the hearing of the issues raised by the interpleader, neither party has shown or attempted to show that the transactions between Lockwood and the garnishees were in any respect fraud ulent. The consideration for which the judgment notes were given, is not attacked or questioned, nor is there any attempt made to show that the transfer to the garnishees of Lockwood’s book accounts, was not made in good faith and upon a good and adequate consideration. Fraud will not be presumed, but must be shown by the party alleging it, and as in this case fraud has neither been proved or alleged, it must be assumed for all the purposes of this decision, that the judgment notes and the transfer of the book accounts were made in good faith and upon a sufficient consideration, and that they are in all respects valid.

Proceeding, then, upon the assumption of their validity, what is the situation of the assets sought to be reached, and what are the rights of the parties in relation thereto? So far as regards the money collected on the execution, that is clearly beyond the reach of either of these contestants. The lien of the execution was prior both to the attachment and the assignment, and as the money collected has been applied upon a valid judgment in favor of the garnishees, it is theirs, and their right to it can not now be called in question.

How is it with the book accounts transferred to the garnishees? The instrument by which that transfer is made is, in form, an absolute sale and assignment of the accounts from Lockwood to the garnishees, and apparently vests them with the entire property therein, both legal and equitable. If that effect is to be given to it, then, clearly, the accounts and all moneys collected thereon belong to the garnishees, and neither the assignee nor the plaintiffs in the attachment suit can have any interest therein.

But we think the circumstances by which the transfer was surrounded, and from which its true character is to be determined, warrant the conclusion that, though absolute in form, it wa« really intended by the parties to operate merely as a security for the indebtedness of Lockwood to the garnishees. See Jones on Chat. Mort., § 24. Lockwood, at the time, as we must assume, was indebted to the garnishees in the sum of $91,149.66, the amount of the notes. Having failed in business, he gave them his judgment notes due on demand for the amount of the indebtedness with the manifest intention of having judgments entered forthwith, and his property-liable to execution, levied upon and sold in satisfaction thereof. At the same time, in consideration of “one dollar, and other good and valuable considerations,” he transferred to them all his open or book accounts, with authority to collect the same and apply the moneys to their own use. It can not be doubted that these papers were all parts of the same transactions, and that the real consideration of the transfer of the accounts was the indebtedness for which the notes were given. Ho other adequate consideration is shown, and that being sufficient, will be assumed to be the true one. But it does not appear that the accounts were taken or accepted by the garnishees in payment or satisfaction of the indebtedness, or any part of it, or that any portion of the indebtedness was thereby cancelled, but directly the contrary is fairly inferable from the evidence.

■ One of the principal tests by which to determine whether a conveyance of lands made in consideration of the grantor’s indebtedness to the grantee, is to be deemed an absolute sale or a mortgage, is, the effect which the parties intend the conveyance shall have upon the indebtedness itself. As said by Mr. Jones in his Treatise on the Law of Mortgages: “ If the indebtedness be not cancelled, equity will regard the conveyance as a mortgage, whether the grantee so regarded it or not. He can not at the same time hold the land absolutely and re-1 tain the right to enforce payment of the debt on account of which the conveyance was made. The test, therefore, in cases of this sort, by which to determine whether the convejrance is a sale or a mortgage, is to be found in the question whether the debt was discharged or not by the conveyance. 1 Jones on Mort. § 267. The same rule is laid down in Sutphen v. Cushman, 35 Ill. 1 §6. We perceive no reason why this test does not apply with equal propriety to sales and assignments of chattels.

But treating the instrument in question as a conditional sale in the nature of a mortgage, it is manifest that the rights of the garnishees are paramount to those of both the assignee and the attaching creditors, to the extent of Lockwood’s indebtedness to them. It is only as to the surplus, if there should be any, that any controversy can arise, and the real question in the ease is, whether such surplus is subject to garnishment If it is, the service of the attachment writ being prior to the assignment, the lien of the attaching creditors upon the surplus is paramount to the rights obtained by the assignee through the assignment If, on the hand, it is not liable to garnishment, the attaching creditors took nothing by their writ, and the right to the surplus passed by the assignment to the assignee.

It is doubtless the rule that legal rights only are subject to garnishment, and that mere equitable interests in dioses in action, can not be reached by this process. May v. Baker, 15 Ill. 89. In other words, the process of garnishment being a legal proceeding given by statute, it only entitles a party to recover such indebtedness as could be recovered by an action of debt or indebitatus assumpsit in the name of ihe attachment debtors against the garnishee. Webster v. Steele, 75 Ill. 544; Wilcus v. King, 87 Id. 107.

Could the surplus in the hands of the garnishees in this case be recovered by Lockwood in his own name in an action at law? A mortgagee, after converting the mortgage security into cash, by sale1 or otherwise, so as to produce a surplus after paying the mortgage debt, holds such surplus as a trustee of the mortgagor, and may be compelled in equity to execute such trust by paying the surplus over to him. But we think he is liable also to an action at law for money had and received. He has in his hands money belonging to the mortgagor, which, in equity and good conscience, he ought not to retain; and in such case the action for money had and received is ordinarily the appropriate remedy. In Coke v. Wheeler, 41 N. Y. 303, it was held, that where a surplus realized from a statutory foreclosure of' a real estate mortgage was equitably retained by the mortgagee, the action for money had and received was the proper form, in which the mortgagor might sue him therefor. In Webster v. Singley, 53 Ala. 208, it was held that the same action would lie in favor of a junior mortgagee who, ex wquo et liono, was entitled to the surplus. The rule is laid down in Jones on Chattel Mortgages, as follows: “A mortgagee becomes a trustee for the mortgagor as to the surplus received upon a sale in the exercise of a power, and the existence of this relation gives the mortgagor a right to the aid of a court of equity to obtain an account of the trust. But ‘generally a resort to equity to obtain the surplus is neither ¡necessary or proper. A suit at law is generally sufficient.” Jones on Chat. Mort. §817.

It is true that in the present ease, there is no power of sale, nor does it appear that any money has been or will be made by the garnishee by sale of the accounts transferred to them as security, but they are given the most ample power to convert them into cash by the more direct and appropriate mode of collection, and if on collection a surplus results, that surplus in equity and good conscience belongs to their mortgag- or, precisely the same as though it had been produced by a sale in the execution of a power; and is recoverable in the same manner.

. The surplus, then, in the hands of the garnishees, being recoverable by Lockwood in an action at law in his own name, was liable to garnishment. It follows that the lien of the attachment creditors is paramount to the rights of the assignee derived through the assignment, and that the decision of the court finding the issues and rendering judgment against the assignee on the interpleader, was in accordance with the facts as they appeared at the hearing. 0

A minor question is raised upon the decision of the court overruling the assignee’s motion to dismiss the writ, on the ground that the garnishees were non-residents of the State, and so not liable, as is claimed, to the process of garnishment. Without determining the validity of this defense, if properly presented and sustained by proof, it may be remarked that it is questionable, to say the least, whether a defense which goes to the jurisdiction of the court of the persons of the parties, can lie properly raised by motion. But waiving that question also, it is sufficient to say that we have carefully examined the bill of exceptions which purports to embody all the evidence given at the hearing of the interpleader, and fail to find a syllable of evidence showing or tending to show that the garnishees were non-residents at the time of the service of the writ, or at any other time, except that in the instrument transferring the accounts to the garnishees, they are described as being of the city, county and State of Hew York. Even if that description was evidence of the fact, it only showed that at a date several days anterior to the service of the writ, the garnishees were residents of Hew York. Non constat, but that they may have become residents during that interval, and the fact that the garnishee served was found here, raises a presumption that he at least was resident here. There being no evidence, therefore, upon which the motion could be based, it was properly overruled.

We find no errors in the record, and the judgment will accordingly be affirmed.

Judgment affirmed.


text:
    Oliver S. Carter v. Henry B. Lockwood.
    1. Practice.—Where the original answer of a garnishee was held insufficient, and bis additional answer was stricken out for non-compliance with the terms upon which leave to file it was granted, the proper practice was to render final judgment against him by default for want of an answer, for the amount of the judgment against the principal debtor, and costs.
    2. Jurisdiction.—During the discussion of a motion to strike out the additional answer of a garnishee, it was admitted by plaintiff's counsel that at that time the garnishee was a resident of New Jersey, doing business in New York, and thereupon counsel for the garnishee moved to dismiss as to the garnishee, for want of jurisdiction. Held, that such motion was properly overruled.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed May 20, 1884.

      Messrs. Horton, Hoyne & Saunders, for appellant;
    as to jurisdiction, cited Roche v. Insurance Asso., 2 Bradwell, 363; Drake on Attachment, § 474.
    The court had no authority to enter final judgment: R. S. 1883, Ch. 62, §§7, 8; C. & St. L. Ry. Co. v. Hindman, 85 Ill. 521.
    Messrs. Flower, Remy & Gregory, for appellee;
    that it was proper to render final judgment, cited I. C. R. R. Co. v. Cobb, 48 Ill. 402; Scamaham v. Scott, 42 Ia. 529.
    As to jurisdiction: Honore v. Home Nat. Bk., 80 Ill. 489; H. & St. Jo. Ry. Co. v. Crane, 102 Ill. 249.
   Bailey, J.

In this case, John W. Doane & Co., brought suit in assumpsit against Henry B. Lockwood, to recover an indebtedness of $4,101.42, and afterward sued out a writ of attachment in aid of their suit, and caused Oliver S. Carter, Henry E. Hawley and George II. Maey, the members of the firm of Carter, Hawley & Co., to be named therein as garnishees. The writ was served on Carter only, and he in due time filed his answer in writing under oath to the interrogatories exhibited by the plaintiffs. Said answer being excepted and demurred to by the plaintiffs as insufficient, the exceptions and demurrer were sustained, and an order entered giving said Carter leave to file a further answer within fifteen days. Ho further answer having been filed within the time limited, and the case coming on for trial, the garnishee moved for leave to answer, and leave was granted him to answer within twenty days, “upon condition that he appear in person at the trial of the cause and submit to oral examination as such garnishee.” In pursuance of the leave thus granted, the garnishee filed his answer, and the plaintiffs took issue upon said answer by replication.

The issues thus formed afterward coming on for trial, the garnishee failed to appear and submit to an oral examination as garnishee, and thereupon, on motion of the plaintiffs, his answer filed by leave of the court was stricken out, and his default entered for want of an answer, and judgment rendered against him for the full amount of the plaintiff’s judgment against Lockwood, and costs. From that judgment the garnishee has appealed to this court.

The original answer of the garnishee having been held insufficient, and his additional answer being stricken ont for non-compliance with the terms upon which leave to file it was granted, the garnishee was in the same situation as though he had not answered at all. He had appeared and was in court, and the case therefore did not require the entry of a conditional judgment against him, with a scire facias to him, to show cause why the judgment should not be made absolute. The proper practice was to render final judgment against him by default for want of an answer for the amount of the judgment against the principal debtor, and costs, and that the court did.

The question is raised whether the court was warranted in imposing the terms it did on granting leave to file an amended answer. At that time the garnishee was clearly in default. His original answer was adjudged insufficient on the 21st day of February, 1883, and he was then given fifteen days to file a further answer. On the 17th day of the October fallowing, and when the cause was reached for trial, no additional answer had been filed. It was then clearly within the discretion of the court to grant or refuse leave to answer, and on granting leave, to impose such reasonable terms as it saw proper. The terms imposed were, that the garnishee should appear at the trial and submit to an oral examination as-garnishee. We see nothing unreasonable in these terras. They amounted practically to no more than a requirement that he should be present at the trial as a witness, to be there examined and cross-examined touching the matters disclosed by his answer-. But even if they were unreasonable, it is now too late to raise that question. Ho exception was preserved to the terms imposed, but instead of excepting, the garnishee, within the time limited, filed his answer. He thus waived objection to and accepted the terms imposed, and can not now be heard to say that they were improper or unreasonable.

If the garnishee has been in any way inj ured by the judgment against him, it is the result of his own negligence. He had ample time to prepare and file a sufficient answer, and if he had any grounds entitling him to his discharge, he should have presented them in apt time. Having failed to do so, he must abide by the consequences.

It appears from the bill of exceptions that, after the decision of the plaintiffs’ motion, to strike out the additional answer, or during the discussion of that motion, it was admitted by the counsel for the plaintiffs that the garnishee was a resident of the State of Hew Jersey, doing business in the city of Hew York, and thereupon counsel for the garnishee moved the court to dismiss the suit as to the garnishee, for want of jurisdiction, which motion was overruled. The propriety of this ruling is obvious on various grounds. The admission was merely that at the time the admission was made, the garnishee was a non-resident of this State. That he was a nonresident then, which was on the 21st day of January., 1884, was no evidence of his being a non-resident on the 25th day of January, 1882, the date of the service of the writ on him. Furthermore, if the garnishee desired to challenge the jurisdiction of the court as to him, he should have done so in apt time by a proper plea. But we are far from being convinced that the mere fact of non-residence, even if it had been properly presented and proved, would of itself have ousted the court of jurisdiction.

We found no errors in the record, and the judgment must therefore be affirmed.

Judgment affirmed.


author: Wilson, J.

text:
    Alexander Belford v. Fletcher Bangs et al.
    1. Indorsement—Indorser’s liability—Notice.—The contract of indorsement is regarded as entering as a condition in the contract of the drawer or indorser of a bill, or of the indorser of anote, that he shall only be bound in the event that acceptance or payment has been duly demanded, and he be notified if it is not paid. As no notice was sent through the post office, directed to appellant, in compliance with the statutes of Michigan, he can not be bound.
    2. Presumption as to place oe indorsement.—An indorsed note, made in one State, in the absence of proof to the contrary, will be presumed to have been indorsed in that State.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 20, 1884.
    Messrs. Hutchinson & Partridge, for appellant;
    as to indorsement, cited Daniell on negotiable Instruments, § 728; Maxwell v. Vansant, 46 Ill. 58; Holbrook v. Vibbard, 2 Scam. 465; Bond v. Bragg, 17 Ill. 69; Evans v. Anderson, 78 Ill. 558.
    The lex mercntoria is in force in Michigan: Cicotte v Morse, 8 Mich. 424; Aniba v. Yeomans, 39 Mich. 171; Stewart v. First Nat. Bk., 40 Mich. 348; Whittier v. Wright, 31 Mich. 92.
    Mr. H. M. Jones, for appellee.
    This was assumpsit, by Bangs & Co. against appellant, as indorser of a promissory note. The note was made by B. F. Twombley & Co., payable to the order of appellant, for the sum of $335.81, dated at Detroit, Michigan, and payable at the Second Hational Bank of Detroit, one month after date. It was indorsed by appellant as follows: “ Pay Bangs & Co., Hew York, or order. A. Belford.’5 Attached to it was a certificate of protest, which set forth that Henry W. Jessop, the subscribing notary, had presented said note at the place where it was made payable, on the 11th day of October, 1879, and demanded payment thereof, which was refused; that he had protested the same in the usual form, and on the same day lie. had put due notices that said note had been presented for payment and that payment was refused, into the post office at Detroit, Michigan, with the full legal postage paid therein, and directed as follows, after diligent inquiry being made for the residence and place of business of the drawers and indorsers :
    “ Notice for A. Belford.
    “Bangs & Co.,
    “ Z. E. ¡Newell, Cashier.”
    “ Directed all to Z. E. ¡Newell, Cashier, ¡New York City, ¡N. Y.”
    “Each of the above named places being the reputed place of residence and business of the person to whom the same was directed, or for whom it was left as aforesaid.”
    The declaration alleged, in the first count, that the appellant indorsed said note to appellee by the name of Bangs & Co.; that said note was duly presented for payment, and payment refused, and that it was thereupon protested under the laws of Michigan; and due notice of such protest having been sent to appellant and the makers of said note, as required by law, the appellant became liable to pay the same.
    The second count alleged the insolvency of the makers, and averred that a suit against them would have been unavailing.
    The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $421, and the defendant appealed to this court.
   Wilson, J.

The only question that need be considered in the present case is as to whether the requisite notice of the non-payment of the note was given to appellant to charge him as indorser. The contract of indorsement is regarded as entering as a condition in the contract, of the drawer or indorser of a bill, or of the indorser of a note, that he shall only be bound in the event that acceptance or payment has been duly demanded, and he be notified if it is not made: 2 Daniell on ¡Neg. Inst., 28. At common law, which includes the lex mereatoria governing negotiable paper (Cook v. Renic, 19 Ill. 598), the performance of this condition was indispensable to the fixing of a liability upon the indorser. 2 Daniell on Neg. Inst., p. 28; Bond v. Bragg, 17 Ill. 69; Cicotte v. Morse, 8 Mich. 428. Here the note was dated at Detroit, in the State of Michigan, and in the absence of proof to the contrary, will be presumed to have been indorsed there. Maxwell v. Vansant, 46 Ill. 58; Daniell on Neg. Inst., § 728.

The indorsement created a new and distinct contract, and is governed by the law of Michigan where it was made: 2 Par. Con. 568; Holbrook v. Vibbard, 2 Scam. 462; Bond v. Bragg, 17 Ill. 69; Maxwell v. Vansant, supra. In the absence of proof to the contrary, the courts of one State will presume that the common law is in force in a sister State: Crouch v. Hall, 15 Ill. 263.

The statute of Michigan which was put in evidence, in no way changes the rule of the common law as above stated. It provides that whenever the indorser of a promissory note shall reside or have a place of business in the same city, village or township, where such note is made payable, or may be legally presented for payment, the notices of non-payment may be sent by depositing such notices, with the postage prepaid, in the local post office, properly directed to such indorser, and whenever any note shall not be made payable at any place, notice of non-payment may be served by depositing the same in a post office, prepaid, directed to the indorser at his reputed place of post office delivery, to be ascertained by the best information that can be obtained by diligent inquiry. In the present case no notice directed to appellant was sen'. The notary’s certificate, which was the only evidence offered on that subject, show's upon its face, that it was directed to Z. E. Hewell, Cashier, Hew York City. How.the notice happened to be thus directed does not appear. It is enough that this was not a compliance with the law. The Supreme Court of Michigan has decided that neglect to give notice to the indorser is conclusively presumed to injure him, and the law' will not permit the contrary to be shown. Smith v. Long, 40 Mich. 555. Appellant testifies that he never received the notice, and first learned of the non-payment of the note two years afterward by a letter received from appellees.

As to the claim that a suit against the maker would have been unavailing, it is sufficient to say that no proof was offered of the existence of any law in the State of Michigan, excusing the indorsee of a note from the use of diligence to collect of the maker by reason of the insolvency of the latter. And if such proof had been made, the evidence of tire insolvency of Twombley & Go. was insufficient.

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

Reversed and remanded.


author: McAllister, P. J.

text:
    Lake Shore & Michigan Southern R. R. Co. v. Joseph Elson, Adm'r, etc.
    1. Evidence conflicting, instructions must be accurate.— Where the evidence upon the question of negligence is conflicting, unless it shall appear that each instruction given to the jury on behalf of the successful party stated the law with accuracy, and was free of all error calculated to mislead the jury, the judgment must be reversed.
    2. Instruction—Ringing of bell—Must give statutory warning.—Where an instruction directed the jury, in substance, that where a railroad crosses a common road, and a railroad train is approaching such crossing, the persons in charge of the train are bound to give reasonable warning, so that a person about to cross with a team and wagon may stop and allow the train to pass, and such warning must be reasonable and timely, so far as circumstances will reasonably admit of. Held, that the instruction was erroneous, as it amounted to a suggestion to the jury that, even if they were obliged to find that the bell on the locomotive had been kept ringing, they might further consider whether that was a reasonable warning of the approach of the train,
    3. Instructions must be based on evidence.—Instructions must be based upon the evidence. It is error for the court, in an instruction, to assume as a fact, negligence which is controverted.
    Appeal from the Superior Court of Cook county ; the Eton. Elliott Anthony, Judge, presiding. '
    Opinion filed June 25, 1884.
    This was an action by appellee, as administrator of the estate of William Elson, deceased, under the statute, to recover damages of appellant for negligently causing the death of appellee’s intestate. The negligence charged in the several counts of the declaration is: (1) The general duty to have a flagman at the street crossing, and the breach of that duty. (2) Failure to perform the statutory duty of ringing a bell or sounding a whistle. (3) Want of a conspicuous light on the forward end of the locomotive. (4) Running locomotive and train at a high rate of speed, to wit, twenty miles an hour. On the trial, under the general issue, it appeared that said William Elson, while attempting, February 22, 1882, to cross appellant’s tracks upon Wabash avenue, in the town of Hyde Park, Cook county, in the night time, by driving a covered grocery wagon over said tracks, was struck by the locomotive of a suburban train of appellant and instantly killed.
    The bill of exceptions purports to contain all the evidence. Upon the question of the exercise of ordinary care by deceased on the occasion in question, the evidence leaves the point in doubt.- Upon the question of negligence, as charged in the declaration, on the part of the railroad company, the evidence was very closely conflicting.
    At the instance of the plaintiff below, the court gave to the jury a series of nine instructions, the third, fourth and tilth of which were as follows:
    “3. The jury are instructed that if a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to. require reasonable care and caution of those traveling on the-other road to avoid a collision; that while a passing train, from its force and momentum, will have the preference in crossing first, yet those in charge of it are bound to give reasonable-warning, so that a person about to cross with a team and wagon may stop and allow the train to pass, and such warning must be reasonable and timely so far as circumstances.will reasonably admit of.”
    “4. If the jury believe from the evidence that the injury complained of was occasioned by a collision between the team, and wagon of the plaintiff’s intestate, and a locomotive engine of the defendant on a public road, at a place where such road' crossed the railroad of the defendant, and that the plaintiff’s intestate used ordinary care and caution to avoid a collision, and that the collision was" owing to the negligent, careless and unskillful manner in which the servants of the defendant managed the locomotive and train of cars attached, as charged in the declaration, and that the deceased wss killed in consequence thereof, then the jury should find a verdict for the plaintiff.”
    “5. The court further instructs the jury that if they believe from the evidence that the engineer or fireman on the locomotive which struck the wagon of the deceased and caused his death—-if they believe from the evidence his death was so caused—could, by the exercise of reasonable care and watchfulness, have seen the deceased in time to have stopped said engine, and avoided the injury without danger to themselves or train, then the railroad companj’- would be liable for the want of such care and watchfulness, and the injury occasioned thereby, provided the jury further believe from the evidence, that the deceased was, at the time, exercising all reasonable care and caution to avoid the injury.”
    The trial resulted in a verdict and judgment against the railroad company for three thousand dollars, and the latter brings the record here by appeal for revision.
    Mr. Cyrus D. Roys and Mr. Pliny B. Smith, for appellant ;
    as to instructions, cited C. & A. R. R. Co. v. Robinson, 306 Ill. 146 ; C. M. T. R. R. Co. v. Rockafellow, 17 Ill. 541; Moss v. Johnson, 22 Ill. 633; I. C. R. R. Co. v. McKee, 43 Ill. 319; C. B. & Q. R. R. Co. v. Magee, 60 Ill. 529; C. C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545; T. W. & W. Ry. Co. v. Jones, 76 Ill. 311; T. W. & W. Ry. Co. v. Foss, 88 Ill. 552.
    Messrs. Monroe & Leddy, for appellee;
    that negligence is a question of fact for the jury, and where there is a conflict of evidence their finding will not be disturbed, even if the court were inclined to the belief that the weight of evidence was with the defendant, cited R. R. I. & St. L. R. R. Co. v. Hillmer, 72 Ill. 235; I. & St. L. R. R. Co. v. Galbraith, 63 Ill. 436; C. & A. R. R. Co. v. Bonifield, 104 Ill. 223.
   McAllister, P. J.

We have carefully examined the evidence, as preserved in and brought here by the record, and find that upon the point whether deceased exercised ordinary care on the occasion in question, the evidence leaves the matter in such doubt that the jury might have been justified in finding either way upon that question; that upon the question of negligence on the part of the appellant railroad company, in any of the aspects charged in the declaration, the evidence was so very closely conflicting as to render it doubtful, at least, whether the plaintiff below was entitled to recover. In such a case it is the well established rule of the Supreme Court that, unless it shall appear that each instruction .to the jury, given on behalf of the successful party, stated the law with accuracy, and was free of all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. Chicago & Alton R. R. Co. v. Murray, 62 Ill. 326; Yolk v. Roche, 70 Ill. 297; Toledo, W. & W. R. R. Co. v. Moore, 77 Ill. 217; Cushman v. Cogswell, 86 Ill. 62; Toledo, W. & W. R. R. Co. v. Grable, 88 Ill. 441; The Am. Ins. Co. v. Crawford, 89 Ill. 62; Wabash Ry. Co, v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475; Stratton v. Cent. City Horse Ry., 95 Ill. 25; Steinmeyer v. The People, Id. 383; Swan v. The Peoole, 98 Ill. 610.

There was a conflict in the testimony as to whether, at the time of the accident, the train of appellant was running at an improper rate of speed, and as to whether the bell on the locomotive had been kept ringing as required by statute, with a decided preponderance, as we look at the evidence, in favor of appellant. How, seemingly, to meet that state of the case, the court, at the request of the counsel for appellee, by the third instruction directed the jury, in substance, that where a railroad crosses a common road, and a railroad train is approaching such crossing, the persons in charge of the train are bound to give reasonable warning, so that a person about to cross with a team and wagon may stop and allow the train to pass; and such warning must be reasonable and timely, so far as circumstances will reasonably admit of.

That instruction amounted to a suggestion to the jury that, even if they were obliged to find that the bell on the locomotive had been kept ringing, they might further consider whether that was a reasonable warning of the approach of the train.

In C. & A. R. R. Co. v. Robinson, 106 Ill. 146, the court say: “The substance of plaintiff’s seventh instruction is, that it is the duty of the railroad company, when its trains are about to cross a highway on a common level, to give ‘ due warning,’ so that a person traveling on the highway with a team and carriage may stop and allow the train to pass. Exactly what is meant by ‘due warning’ is not readily understood. The servants of a railroad company, when approaching a public road crossing, are required to give the statutory signals of danger—that is, to sound a whistle or ring a bell. These signals are well understood by every one, and they constitute all the ‘ warning’ the law requires the servants on the train to give. It may be the jury understood the words ‘due warning’ to mean more than the statute requires, and, if so, it made an erroneous impression, and ought not to have been given.”

The fourth instruction for plaintiff assumes, as a fact, that the servants of the defendant managed the locomotive and train of. cars attached in a negligent, careless and unskillful manner, and directed the jury to find for the plaintiff if they found that the deceased was killed in consequence thereof.

If that species of negligence is charged in either count of the declaration, it was controverted on the trial; and for the court to assume it as a fact was not only improper but prejudicial to the defendant. Ill. Cent. R. R. Co. v. Zang, 10 Bradwell, 594.

Upon a thorough examination we are unable to find, and counsel for appellee do not refer us to, any count in the declaration upon which the plaintiff could recover upon the basis of the hypothesis of the fifth instruction. ETor can we find any evidence offered with a view to a recovery upon that basis. There being no such basis in the proceedings or evidence, the instruction was improper. The East St. L. P. & P. Co. v. Hightower, 92 Ill. 139.

For the giving the instructions above specified, the jndgment will be reversed and cause remanded.

Judgment reversed.


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    Pittsburgh, Cincinnati & St. Louis Ry. Co. v. James McGrath, Adm’r.
    Instruction—Fellow servants.—Where the evidence in regard to the question of negligence was conflicting, and the ground stated in an instruction for negativing the existence of the relation of fellow servants was simply, “ and that said engineer was not engaged in the same line of employment as the deceased in the service of the said defendant company. ” Held, that the hypothesis should have been added that one was employed in a wholly separate and disconnected branch of the business of the defendant from that of the other; or that there were no relations existing between them, or duties devolving upon them, of such character as to bring them together co-operating in any particular work, and as the evidence as to negligence was conflicting, the case is reversed for this inaccuracy in the instruction.
    Appeal from the Superior Court of Cook county; the Hon. Kike Hawes, Judge, presiding.
    Opinion filed June 25, 1884.
    This action was brought by the administrator of the estate of Thomas Kelly, deceased, to recover damages to the widow and next of kin of deceased, consequent upon the death of the intestate, which was caused, as it is alleged, by the negligence of one of the employes of defendant.
    The record shows that the deceased, at the time of his injury, was, and for some months previously had been, engaged in the service of defendant, as a laborer or section hand; his work generally being upon the tracks of defendant’s yard in Chicago, and assisting in the repairs of side tracks as directed by his foreman. During the same time one Murphy was also engaged in the service of the defendant, his duties being those of a “ hostler,” that is, to take the engines brought into the yard from place to place, and provide them with fuel and water. It appears that October 30, 1879, a locomotive was brought into this yard about noon. It remained standing in one place upon the tracks for nearly an hour. Kelly, with another section hand, had been assigned to the work of cutting a rail with a cold chisel, some fifty or sixty feet away from that locomotive, so standing on the track, and was down upon his knees at work when Murphy, coming back from his dinner, got onto the engine, started it backward toward where Kelly was at work, and he, seeming wholly unaware of its approach, was struck by it and killed. It was the plaintiff’s theory of the affair that Murphy started and moved the engine backward without giving Kelly and his co-laborer any warning. The theory of the defense was that Murphy rang the bell and that it was due to Kelly’s carelessness that he did not heed it. Upon the question whether the bell was rung, the evidence was conflicting. The defendant also claimed that Murphy and Kelly were fellow servants in the sense which would preclude a recovery against the common master for an injury to one by the negligence of the other.
    At the instance of plaintiff’s counsel, the court gave to the jury the following instruction as purporting to cover the entire case:
    “ The court instructs the jury that if they believe from the evidence that Thomas Kelly, the deceased, was engaged in the employ of said defendant company on the 30 th day of October, A. D. 1879, upon the track of said defendant at or near Curtis street, in Chicago, in Cook county, Illinois, as a laborer or track repairer, in the discharge of his duty as such laborer; and further find from the evidence that an engine of said defendant company was standing on the track whereon said deceased was working, and at a short distance therefrom; and further find rom the evidence that said engine was started and moved on said track toward said deceased, without any notice or warning being given of its approach, and that said engine was under the control and care of an engineer in the employ of said defendant Q,oxi\ywLy, and that said engineer was not engaged in the same line of emfloyment as the deceased in the

      service of send defendant company; and further find from the evidence that said engine, when so moved on said track, struck and ran over said deceased, whereby he was so injured and wounded that he died from the effects thereof; and if the jury further find from the evidence that said deceased was guilty of no negligence which contributed to the injury complained of, and was exercising due and reasonable care and diligence in view of his surroundings, as shown by the evidence, to avoid injury from, trains or locomotives upon said track; and further find from the evidence that the said engineer failed to give any notice or warning that he was about to start and move said engine as aforesaid on said track, and that by reason of such failure he was guilty of gross negligence, which contributed to and caused the injury complained of; and that said plaintiff was duly appointed administrator of the estate of said deceased by the Probate Court of Cook county, Illinois, and that deceased died leaving a widow and child surviving him, then the said defendant company is liable in this action, and you should find a verdict for said plaintiff, and may assess such damages as you find from the evidence to be a fair and just compensation to such widow and next of kin for the pecuniary injuries they have sustained resulting from such death of said deceased person.” (Given.)
    The trial resulted in a verdict and judgment against the defendant for five thousand dollars.
    Messrs. Willard & Driggs, for appellant;
    that whether two employes of the same master are in the same line of employment is a question of law and fact, and not a question of fact alone, cited C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302; Same v. Same, 108 Ill. 576; I. & St. L. Ry. Co. v. Morgenstern, 106 Ill. 216; O. & A. R. R. Co. v. Murphy, 53 Ill. 336.
    Mr. M. J. Dunne, for appellee;
    as to who are fellow servants, cited P. Ft. W. & C. Ry. Co. v. Powers, 74 Ill. 341; T. W. & W. Ry. Co. v. O’Conner, 77 Ill. 392; C. & 14. W. Ry. Co. v. Moranda, 93 Ill. 302; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; C. & 14. W. Ry. Co. v. Swett, 45 Ill. 197; Sch. Sorway v. Jensen, 52 Ill. 373; I. C. R. R. Co. v. Welch, 52 I.l. 183; C. & N. W. Ry. Co. v. Jackson, 55 Ill. 492; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Ryan v. C. & N. W. Ry. Co., 60 Ill. 171; C. & N. W. Ry. Co. v. Taylor, 69 Ill. 461; T. W. & W. Ry. Co. v. Fredericks, 71 Ill. 294; I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216; C. & A. R. R. Co. v. May, 108 Ill. 288.
   McAllister, P. J.

The evidence was conflicting upon the question of negligence on the part of the engineer, Murphy. It was, therefore, indispensable to a verdict for plaintiff, which he could retain, that each instruction on his behalf should give the law to the jury with accuracy, and especially as to what, circumstances would fully negative the existence of the relation of fellow servants between Murphy and the deceased Kelly. We have collected the cases holding to the necessity of accuracy of each instruction in such cases, in Lake Shore & Michigan Southern Ry. Co. v. Elson (15 Bradwell, 80), at this term, and need not repeat them here.

The first instruction for plaintiff purports to state all the elements of a cause of action and what is requisite to a recovery. While doing so, the instruction purports to direct the jury as to what circumstances would be sufficient to negative the existence of the relation of fellow servants of a common master between the engineer, Murphy, and the deceased, Kelly, which had been relied on by defendant, as taking the case out of the range of the rule, respondeat superior. The only hypothesis of the instruction in respect to that relation was this: “and that said engineer was not engaged in the same line of employment as the deceased in the service of the said defendant company.”

As stated, the ground for finding that the relation of fellow servants between those persons did not exist in the sense that would leave the common master liable to the personal representative of the one for the negligence of the other, was incomplete. The hypothesis should have been added that one was employed in a wholly separate and disconnected branch of the business of the defendant from that of the other; or that there were no relations existing between them, or duties devolving upon them of such character as to bring them together, cooperating in any particular work. Indianapolis & St. L. R. R. Co. v. Morgenstern, Adm’r, 106 Ill. 216; Chicago & North W. R. Co. v. Moranda, 93 Ill. 302; S. C. 108 Ill. 576.

The ground stated in the instruction for negativing the existence of the relation in question, being imperfect and short of what the law required, it was misleading; and there being a conflict of testimony upon the question of negligence, we are required, by the established rule of the Supreme Court, to reverse the judgment and remand the cause.

Beverscd and remanded.


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    Caleb H. Booth v. Josephine C. Smith.
    Chancery.—A complainant must recover, if at all, upon the case made by his bill. A decree which, instead of attempting to apply any of the remedies given by law in cases of fraud, transforms what the bill alleges and the court finds to be a mere representation, into a contract or warranty, and then decrees its specific performance, is erroneous.

      Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed June 25, 1884.
    This was a suit in chancery, brought by Josephine C. Smith against the Western Indiana Coal Company, Oliver H. Parsons and Caleb H. Booth. The bill alleges that in March or April, 1883, said Parsons, being the president of the Western Indiana Coal Company, a corporation organized and existing under the laws of this State, made to the complainant’s husband and agent certain representations in relation to said company and to a certain coal mine which said company then owned, situated at Newport, Indiana, to the effect, among other things, that said company was successfully working said mine and paying its current expenses out of the proceeds of the coal taken therefrom; that the product of the mine could readily be increased to fifty tons per day, when the mine would pay a large profit to its operators; that the coal taken therefrom was worth twenty-five cents per ton more than any coal mined in the State of Illinois; that said coal could be mined and placed on the cars at the mine at a cost of not to exceed $1.27 per ton; also that there had then been invested by the stockholders of said company, in the mine and in the purchase of the property which said company had in its possession, <the sum of $3,500, and that the value of the property belonging to the company was $20,000, its indebtedness being not over $1,500.
    The bill further ¿alleges that, relying upon and believing said representations, the complainant, by her said agent, entered into a written agreement with said Parsons, whereby she agreed to purchase of him 392 shares of the capital stock of said companj'-, and to pay therefor the sum of $4,000, of which $500 was to be paid to said Parsons, as a bonus, and the remaining $3,500 to the company, $1,500 to be used to pay the existing indebtedness of the company, and $2,000 in the business of the company as it should be required; that said representations were false and known to said Parsons to be false at the time they were made, the fact being that said coal was worth at least twenty-five cents per ton less than Illinois coal; that said mine, instead of paying expenses, was being run at a loss of $20 per day, and had never paid current expenses; that the cost of mining said coal and placing it on the cars at the time, instead of being only $1.27 per ton, was at least $1.88 per ton; that instead of the stockholders having invested $3,500 in said company, they had invested in it not more than $2,000, and that the assets of said company were worthless.
    It is further alleged that by reason of said false representations the complainant was deceived and defrauded out of said sum of $4,000, and that she received no consideration therefor, said shares of stock being only made valuable by her payment to said company; that although by the terms of said agreement said Parsons was to sell to her said shares of stock, they were held by one J. J. Kelly for and in the interest of said company and its stockholders, and said agreement was made for and in the interest of said company and its stockholders, except as to the $500 paid to said Parsons as a bonus; that after the purchase of said stock by the complainant, said mine was worked until May 15,1883, ata loss of $25 per day, since which time it has not been operated; that there is no possibility of its being worked except at a loss which will eventually make the company insolvent; that the company has already lost in its business about $1,000; that its capital stock consists of 800 shares of the par value of $25 each, of which complainant is the owner of 391 shares and her said agent of one share; that the treasurer of the company delivered to said Parsons, its president, a check for $534.11 to be deposited in the company’s bank to its credit, but that instead of so depositing it he delivered to defendant Booth, upon a pretended claim against the company; that said Booth, who appears to be the holder of 386 shares of the stock of said company, claims to be a creditor of said company in the sum of $2,000, and has brought his suit against said company in the Circuit Court of Cook county for the recovery thereof; that said claim is wholly without any legal or equitable foundation, but that a majority of the board of directors of said company are wrongfully colluding with said Booth to allow a judgment to be rendered in Booth’s favor for the amount of said claim without any defense, and to exhaust all the existing assets of the company in its payment; that the complainant is willing and offers to assign to the company, under the direction of the court, all the said shares of stock issued to her.
    The bill prays that an accounting be taken in the premises, and that said company and said Parsons be decreed to pay to the complainant the sums of money found to be due from them respectively; that said Booth be decreed to refund said sum of $534.11 paid him by said Parsons; that a receiver be appointed, and said Booth be enjoined from further prosecution of his suit, and the officers of said company from paying his said claim or from interfering with the assets of the company, and also a general prayer for relief.
    The answer denies that Parsons made the representations alleged in the bill, or that the complainant was induced by such representations to purchase said shares of stock, and alleges that her agent made full investigations of the facts for himself before purchasing, and purchased solely upon his own personal knowledge and judgment. It also alleges, among other things, that said mine and all the property of said company was purchased with money furnished by said Booth, and that he was the actual owner of 778 shares of its capital stock, and that said Parsons, acting as his agent, sold to complainant 392 shares of said stock for $4,000, with the understanding that $3,500 of. that sum should be loaned to the company and charged to it on its books, one half of the same to be credited to Booth and one half to the complainant, the fact being that the complainant was really to pay only $1,750 for said stock and to loan an equal amount to the company, said Booth also loaning to the company the said amount received by him for said stock, and that the entries were made upon the books of the company in accordance with that agreement.
    A receiver was appointed who took .possession of the assets of the company and converted the. same into cash, and after paying its indebtedness, reported to the court a cash balance in his hands of §883.08. On the final hearing on bill, answer, replication and proofs, the court found the equities of the case to be with the complainant, but found in substance, that the allegations in the bill of fraudulent representations by said Parsons were not supported by the proofs, except the representation that there had been invested by the stockholders of the company in the company’s mine and property the sum of §3,500; that there had been invested in said mine and property a gross sum of only §3,024, from which should be deducted the sum of §714.70, the proceeds already derived from the mine, leaving a deficiency between the actual amount invested and the amount represented of §1,190.70, and the court thereupon found that said Booth was indebted to said company in said sum of $1,190.70. The decree also found that said sum of $574.11 had been wrongfully paid by Parsons to Booth and that Booth was indebted to the company for that sum; also, that upon payment by said Booth to said company of the sums above mentioned, his proportion of the funds of the company as the owner of 386 shares of its capital stock would be $1,279.56, leaving a balance due the company from him over'and above his proportion of the assets of the company of $485.24. It was accordingly decreed that said company be dissolved and that said Booth pay said company said sum of $485.24 within twenty days, and in default of such payment, that execution issue therefor. Also, that the assets of the company be distributed among the shareholders, exclusive of said Booth, according to the number of shares by them respectively held, and that said Booth pay the costs of the suit.
    From this decree said Booth has appealed to this court.
    Messrs. McConnell & Rogers, for appellants^
    Messrs. Cratty, Abbott & Johnson, for appellee'
   Bailey, J.

It is a rule so familiar as to need no illustration that a complainant must recover, if at all, upon the case made by his bill. Applying that rule, we are unable to see how the decree in this case can be sustained.

The only allegations in the bill upon which any relief as against the appellant can be based, are 1, the wrongful payment to him by Parsons of $534.11 of the company’s money, and 2, an attempt on his part to enforce by suit an unfounded and unjust claim against the company for $2,000. Various false and fraudulent representations are charged to have been made by Parsons, the president of the Western Indiana Coal Company, to the complainant’s agent, but it is nowhere charged that any such representations were made by the appellant, or that Parsons, in making them, acted or was authorized to act as his agent, or that any such relations existed between Parsons and the appellant as would make the appellant in the slightest degree responsible for Parsons’ acts. The decree, however, after finding that Parsons represented that the stockholders of the company had invested $3,500 in the mine and property of the company, and that such representation was false to the extent of $1,190.70, charged the appellant with such deficiency and required him to make it good to the company. To this extent the decree is a clear departure from the case made by the bill.

But if the bill had been so framed as to mabeThe appellant responsible for Parsons’ fraudulent representations, it is difficult to see upon what principle the decree conld be sustained even in that case. If the complainant, relying upon the false and fraudulent representations of the appellant or his agent,' was induced to purchase 392 shares in the capital stock of the company, she would doubtless have been entitled, on discovering the fraud, to rescind the contract of purchase and recover back the purchase money, or perhaps without rescinding, she might have maintained her action at law against the appellant for the fraud, and recovered such damages as she may havó sustained by reason thereof. The decree, however, instead of attempting to apply any of the remedies given by law’in cases of fraud, transforms what the bill alleges and the court finds to be a mere representation, into a contract or warranty, and then decrees its specific performance. This seems to us to be a species of relief which, under the pleadings and evidence in this case, is unwarranted.

We are unable, as the pleadings stand, to express any opinion as to the merits of the controversy between these parties. The case seems to have been tried upon a theory entirely different from any one properly arising from the averments of the bill. We are compelled, therefore, to reverse the decree and remand the cause for further proceedings, so that by suitable amendments to the pleadings, the merits of the controversy may be properly presented on another hearing.

Several cross-errors have been assigned by the appellee, which we will consider briefly. The first is, that the court erred in refusing to enter a decree against the appellant for §3,500, the entire amount paid by the appellee for said share of stock. Without pausing to discuss the evidence bearing upon this question, it is sufficient to say that no case for such a decree is made by the bill. There is no claim or allegation in the bill that appellee purchased said stock from appellant, or that appellant received or had the benefit of the money paid therefor, or that he was in any way responsible for the representations by which appellee was induced to make the purchase. So far as the bill shows, the appellant was an entire stranger to the transaction. Under these circumstances a decree against him for the purchase money would have been manifestly erz-oneous.

Again, it is claimed that the court erred in its decree as to the amount of money which the stockholders had invested in the company’s mine and property; and also in finding against the appellee as to all the other false representations charged in the bill. The questions here raised are questions of fact upon which the evidence is conflicting, and upon which we prefer to express no opinion, since the case must be heard again in the court below. Furthermore, as the bill is framed, such finding, so far at least as the appellant is concerned, is immaterial.

The remaining cross-error assigned, viz., that the court-erred in refusing to decree the repayment by Parsons of the-$500 paid todiim as a bonus, necessarily involves a consideration of evidence which, as we have said, is conflicting, and upon which it would be unwise for us to express an opinion.

■ For the errors above pointed out, the decree will be reversed and the cause remanded.

Decree reversed.