text:
    Benjamin H. Warder et al. v. John P. White.
    1. Agency — Principal unknown — Obligation.—Where defendants had no acquaintance with, or knowledge of, the principal, a real estate broker, and they employed his agent to make a purchase for them, making a special contract with the agent as to services and compensation. Held, that inasmuch as the defendants, when they discovered that the plaintiff was the principal, could have held him responsible upon the contract which they made with his agent, the law would raise a reciprocal obligation on their part to respond to the principal on the same contract, subject to any equities arising in their favor before the discovery.
    2. Right op principal to sub. — The right of the principal to sue in such case is paramount to that of the agent, and in cases where either may bring action, the former, by giving notice to the other contracting party, puts an end to the agent’s right of action, except where the agent has a lien upon the subject-matter of the action equal to the claim of the principal.
    3. Trust and confidence in agent.— The same rules of law announced above, apply where the contract with the agent involves personal trust and confidence as in other cases.
    4. Notice bt principal; — Where a check for commissions was given by defendants to an agent, and notice was served upon them by the plaintiff that he claimed the amount due, as principal, in ample time for defendants to stop payment on the check. Held, that, by giving the check defendants recognized the amount as clearly due from them, and let it he paid at their peril, and there is therefore no equity in their favor from that circumstance.
    ' Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Opinion filed November 16, 1883.
    Mr. I. K. Boyesen and Mr. Samuel Keek, for appellants;
    that a broker or other agent, in whom special trust and confidence is reposed, can not delegate his authority without express power given for that purpose, cited Story on Agency, §§ 12, 13, 110, 201; Parsons on Contracts, 5th ed., 99; Edwards on Factors and Brokers, § 107, p. 142; Cockrain v. Islam, 2 M. & S. 501; Solby v. Rathbone, 2 M. & S. 298; Campbell v. Reeves, 3 Head (Tenn.), 226; Catlen v. Bell, 4 Campbell, 183; Schmaling v. Tomlinson, 6 Taunt. 147 (1 E. C. L.)
    A real estate broker can not act adversely to his principal and recover commissions: Walker v. Osgood, 98 Mass. 348; Farnsworth v. Hemmer, 1 Allen, 494; Parsons on Contracts, 86, 5th ed; Cottom v. Holliday, 59 Ill. 178.
    A broker is not entitled to commissions until the service he is employed to perform is consummated: Dalton v. Irwin, 4 Car. & P. 289; Broad v. Thomas, 7 Bingham, 99.
    Messrs. Quigg & Tuthill, for appellee;
    as to when a verdict will not be disturbed, cited Johnson’s Comp., 51 Ill. 219; O. & M. R. R. Co. v. Brown, 25 Ill. 124; Aurora F. Ins. Co. v. Eddy, 55 Ill. 213; Peru v. French, 55 Ill. 317; Fitch v. Zimmer, 62 Ill. 126; Robinson v. Parish, 62 Ill. 130; Toledo, W. & W. Ry. Co. v. Moore, 77 Ill. 217. 98, 429.

      As to an agent receiving payment of money due his principal: Story on Agency, §§ 98, 99, 181, 429; Favenc v. Bennett, 11 East, 36.
    The giving of a check even when certified does not amount to payment: Brown v. Leckie, 43 Ill. 497; Beckford v. First Nat. Bk., 42 Ill. 238; Munn v. Burch, 25 Ill. 35.
    After notice by appellee it was the legal duty of appellant Glessner to defer the payment of the money to any one, until he could safely pay the right man: Cohen v. Hale, 32 Ill.
   McAllister, P. J.

This was assumpsit by White against Warder, Bushnell and Glessner to recover for commissions, etc., in effecting the purchase on behalf of defendants of certain real estate, which they desired to obtain. There was a trial under the general issue, resulting in a verdict and judgment for plaintiff for $750, and the defendants appealed to this court. It appeared on the trial that the plaintiff, White, was at the time in question, and for a long time previously had been, in the regular business of real estate agent and broker. ‘It also appeared that the defendants had no acquaintance with or knowledge of him, and that they employed one Shields to make the purchase in question for them, making a special contract with him as to the services to be performed and compensation to be paid. Upon that ground, the defendants insist that there was no privity of contract between them and White. But it appears, or there was evidence tending to show, that at the time of such contract with Shields he was in the employment of White, as clerk in his office. To this the defendants say that the employment was one of special trust and confidence; and that inasmuch as Shields could not delegate his authority, the benefits of the contract could not inure to White as Shields’ principal; so, even conceding that Shields was White’s agent at the time defendants entered into the contract with him, there would, nevertheless, be no privity of contract between the defendants and the plaintiff, under the circumstances of this case, however the rule might be in other cases where no personal trust was reposed in the agent so employed.

All such commercial questions being of importance to the community, we have given to the one here that consideration which ought to lead to accuracy of conclusion, whether any such distinction as has been taken by counsel for appellants really exists.

The maxim delegada potestas non potest delegari, is not one of universal restriction: lían also v. Stein, 50 Ala. 347. And according to our view, it is not applicable, and can not be invoked in this case. The rights of White, the plaintiff, in no inspect depend upon or arise out of any supposed delegation of authority from Shield to him, but spring from principles almost universally recognized in the law of agency, viz. that inasmuch as the defendants when they discovered that White was Shields’ principal, could have held him responsible upon the contract which they made with Shields, the law would raise a reciprocal obligation on their part to respond to the principal on the same contract, subject, of course, to any equities arising in their favor, before such discovery.

No reason was suggested on the argument, and none, as we believe, can be suggested, why the plaintiff, White, could not have been held responsible to the defendants upon the contract which Shields made with them, or for any misconduct of the latter in the course of his employment to the defendant’s injury, notwithstanding Shields contracted in his own name, and his relations to White were unknown to the defendants at the time: Story on Agency, §§ 160-161, and cases in notes; Barker v. Garvey, 83 Ills. 184.

“ In such cases there arises a reciprocal obligation to the principal, on the part of the third person with whom such contracts are made, and for whose benefit, and with whose consent, such acts are done. In short, the general doctrine in all such cases is, that the principal, as the ultimate party in interest, is entitled against such third persons, to all the advantages and benefits of such acts and contracts of his agent”: Story on Agency, § 418; Paley on Ag., by Lloyd, 223-326; Livermore on Ag. 281-284; Ewell’s Evans on Agency, marg. p. 396.

It is not pretended in this case that the defendants are in any respect prejudiced by the suit having been brought by the principal instead of by the agent; and the plaintiff gave them timely notice that he should insist upon the commissions being paid to him instead of to Shields. The rule of law in such case is, that the right of the principal to sue is paramount to that of the agent and in cases where either may bring the action, the former, by giving notice to the other contracting party, puts an end to the agent’s right of action, except in cases where the agent has a lien upon the subject-matter of the action equal to the claim of the principal: Ewell’s Evans on Ag., marg. p. 400-404.

The general rules above announced apply the same in cases where the contract with the agent involves personal trust and confidence as in other cases. In Grojan v. Wade, 2 Starkie, R. 443, Grojan sued Wade to recover the amount of fees, etc., due to him as a proctor, for procuring the probate of a will. It appeared on the trial that Wade employed one Owen to perform the services, who did perform them, and made out and presented a bill for them in his own name, and testified that it was his general practice to make out bills to clients in his own name. It further appeared that the defendant had known no other person in the transaction but Owen, he never having heard of the existence of the plaintiff. But it was also shown that Owen, during the transaction, was the mere clerk of the plaintiff. Abbott, O. J., was of opinion “ that the circumstances of the defendant’s ignorance, that Owen was the mere clerk and Grojan the principal, would not preclude the 'latter from recovering, it having been established on the oath of Owen, that the plaintiff really was the principal for whom he acted. If any prejudice had arisen to the defendant from the supposition that Owen was the principal, the case might be different; but that did not appear, and the sum claimed was clearly due from the defendant, since the business had been done. The case was like that of a factor, who conceals the name of his principal in selling goods.” In that case, personal confidence was reposed in Owen, whom, alone, defendant employed.

It appears that on the ISth day of August, the same day on which the plaintiff notified the defendants of his claim, as principal, to the commissions in question, the defendants gave their check payable to Shields for $750, the stipulated commissions: but whether that was before or after such notice, is not very clear; one of the defendants testified that it was before. Whether it was before or after is not material, because it clearly appeared that the check was not paid by the bank until the following December. The defendants could have easily stopped payment, after they received plaintiff’s notice, if they had chosen to do so. By giving the check they recognized the amount as clearly due from them, and let it be paid at their peril. There is no equity in their favor from that circumstance.

We are unable to perceive any substantial error in any of the instructions given for plaintiff, as they appear in the record. We have examined those which were asked for defendants and refused by the court, and think they were properly refused. As to the first of them, there was no evidence on which to base it. The second contains no hypothesis that Shields was not the clerk or agent of plaintiff, or that the relations stated in the instruction were the only relations subsisting between them, or that all tlieir relations were terminated on or about the 1st of June, 1882, and before Shields entered into the contract with defendants to serve them in the capacity of broker.

The third instruction refused was obscure and misleading. ' The jury would fail to understand its meaning or application. The fourth was likewise misleading. The time when the defendants met Bue, the owner of the property, was not material or decisive, because the evidence shows that Bue acted through Cummings as his agent.

There was evidence sufficient to support the verdict, and we perceive no substantial error of law. The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: IVIoAllisteb, P. J.

license: Public Domain

text:
    Austin Humphrey Impl’d, etc., v. Merrit T. Cole.
    1. Statute op Limitations — Construction op words “when a cause op action has arision,” etc. — Under the decision of the Supreme Court, the words “ when a cause of action has arisen,” as they occur in the Statute of Limitations (Section 20) should he construed as meaning when jurisdiction exists in the courts of a State to adjudicate between the parties upon the particular cause of action if properly invoked, or in other words, when the plaintiff has the right to sue the defendant in the courts of the State upon the particular cause of action, without regard to the place where the cause of action had its origin.
    2. Twenty years limitation — Presumption.—An instrument sued upon was made in Illinois, April 21, 1857, payable in six months after date. The defendant, one of the joint makers, left Illinois in 1859 and went to Nebraska, where he has continued to reside until the present time. In 1874 the note was presented to defendant in Nebraska for payment, and payment thereof refused by him. By the statutes of Nebraska an action on the instrument would be barred there after the period of five years. Suit was brought in Illinois against defendant in 1880. Held, that as the instrument in suit appears on its face to have been due more than twenty years prior to the bringing of this suit, the common law presumption of payment arising from such lapse of time, necessarily arises, as there is nothing in the facts stipulated or in the evidence sufficient to rebut such presumption. Especially is that so as to the joint maker, Parmenter. Payment by him would extinguish the claim the same as if made by defendant.
    Error to the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed November 16, 1883.
    This action was brought in the court below, August 16, 1880, by Cole, as the assignee of the payees, against Humphrey and Parmenter as the makers of the instrument of which the following is a copy:
    “ $1,389.91. Pock Island, Ill., April 21, 1857. Six months after date we promise to pay to the order of Fenton, Lee & Co., one thousand, three hundred and eighty-nine 91-100 dollars at Fish, Good all & Co.’s office, with current rate of exchange on New York, value received.
    “Humphrey & Parmenter.”
    Indorsed — “Pay M. T. Cole or order.
    “Fentoh, Lee & Co.”
    The declaration contained a count upon said instrument, and the common counts. The defendant, Humphrey, alone was served, and he pleaded the general issue, a plea of payment, also pleas of the Statute of Limitations of the State of Illinois and of the State of Nebraska, on which issue was taken and the case tried before the court, upon the following stipulation as to the facts and evidence of the statutes of the State of Nebraska:
    “It is hereby stipulated and agreed that the above case may be submitted to the court for trial on call, without a jury, a jury being hereby waived.
    “ The following are admitted facts: The defendant, Austin Humphrey, resided in the State of Illinois from April, 1857, until April 1, 1859, when he left the State of Illinois and became a resident of the Territory, now State of Nebraska, and has continued to reside there until the present time, and has not been a resident of this State since April 1, 1859. That on or about the 1st of September, 1874, the promissory note sued on in this case was presented to said Austin Humphrey for payment at Lincoln, in the State of Nebraska, and payment thereof refused by him.
    “ The plaintiff is now a resident of the State of Illinois. The payees of the said note, Fenton, Lee & Co., were residents of the State of New York at the time the note bears date. It Is agreed that plaintiff on the trial may read the note sued on in evidence. That the defendant may read, after proper proof, and offer in evidence the statutes of Nebraska.
    “ The plaintiff may, if he thinks it material, prove when he became a resident of the State of Illinois.
    “ And that no other proof is to be offered by either party on the trial.
    “ Mr. Blanchard, attorney for plaintiff.

      “ Chas. F. White, attorney for defendant, Humphrey.”
    Filed June 5, 1883.
    Plaintiff’s evidence. — Plaintiff gave in evidence on his behalf the promissory note set out in the declaration, and rested.
    Defendant’s evidenoe. — And thereupon defendant, Humphrey, gave in evidence on his behalf the following portions of the printed statute books of the State of Nebraska, purporting to be printed under the authority of the State of Nebraska, viz.:
    “ Chapter 57. Code of civil procedure.”
    “ Title 11. Time of commencing actions.” ,
    “ Section 9. Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued.”
    “ Section 10. Within five years on actions upon a specialty or any agreement, contract or promise in writing, or foreign judgment.”
    Which was all the evidence introduced on the trial of this cause.
    And thereupon the court gave judgment for the plaintiff and against the defendant, Austin Humphrey, for $3,531, being the amount of the principal of said note, to wit, $1,389.91, and interest thereon at 6 per cent, from October 24, 1857, to date of judgment, said interest amounting to $2,141.09.
    To which decision and judgment of the court, the defendant, Austin Humphrey, then and there excepted.
    To reverse which the defendant brings error to this court.
    Mr. O. F. White, for plaintiff in error;
    that at common law a note, bond or other evidence of indebtedness is presumed, after a lapse of twenty years, to be paid, and the burden of proving non-payment by evidence other than the note itself is thrown upon the party seeking to establish a liability on such note, cited Wells v. Washington, 6 Munf. (Va.) 532; Kline v. Kline, 20 Penn. 503; Reed v. Reed, 46 Penn. 238; Sanborn v. Olmstead, 1 Chand. (Wis.) 190; Lyon v. Adde, 63 Barb. (N. Y.) Pr. 89; Sellers v. Holman, 20 Penn. 321; McKinder v. Littlejohn, 1 Ired. (N. C.) L. 200; Smith v. Benton, 15 Mo. 371; Clemens v. Wilkinson, 10 Mo. 97; Carr v. Dings, 51 Mo. 100; Kilpatrick v. Breashear, 10 Heisk. (Tenn.) 371; Yarnell v. Moore, 3 Cald. (Tenn.) 171; Walker v. Wright, 2 Jones (N. C.) L. 156; Pearsall v. Houston, 3 Jones (N. C.) L. 346; Brine v. Brine, 2 Ired. (N. C.) 87; McDaniel v. Goodale, 2 Cald. (Tenn.) 391; Grantham v. Canaan, 38 N. H. 270; Smithpeter v. Ison, 4 Rich. (S. C.) 203; Rogers v. Judd, 5 Vt. 236; McQueen v. Fletcher, 1 Rich. (S. C.) Eq. 152; O’Brien v. Holland, 3 Blackf. (Ind.) 190; Morris v. Funk, 23 Penn. St. 121; Sparhawk v. Buell, 9 Vt. 41; Woodhouse v. Simmons, 73 N. C. 30; Grant v. Burgwyn, 84 N. C. 560; Rowland v. Windley, 86 N. C. 38; Wilfgong v. Cline, 1 Jones (N. C.) L. 500; Jarvis v. Albro, 60 Me. 310; Didleke v. Robb, 1 Woods, 680; Clark v. Clement, 33 N. H. 563; Downs v. Sooy, 28 N. J. Eq. 55; McCormick v. Evans, 33 Ill. 327.
    A statute providing for the limitation of actions does not abrogate or change the common law presumption of payment arising from the lapse of time: Byles on Bills, 296; Carr v. Dings, 51 Mo. 95; Sanderson v. Olmstead, 1 Chand. (Wis.) 190; Reed v. Reed, 16 Penn. 238; Hale v. Pack, 10 W. Va. 145; Smithpeter v. Ison, 4 Rich. (S. C.) 203; Greenleaf on Ev., § 39.
    The bar raised by the Statute of Limitations prohibits an action; the presumption which the law raises after the lapse of twenty years that a debt has been paid, prima facie obliterates the debt: Reed v. Reed, 16 Penn. 238; McDaniel v. Goodale, 2 Cold. (Tenn.) 391; Thompson v. Thompson, 2 Head, 106.
    Evidence to rebut this presumption of payment must be that, the legitimate tendency of which is to disprove the payment: Wood v. Deen, 1 Ired. (N. C.) L. 230; Reed v. Reed, 16 Penn. 238; McDaniel v. Goodale, 2 Cold. (Tenn.) 391; Thompson v. Thompson, 2 Head (Tenn.), 106; Smith v. Benton, 15 Mo. 371; Grantham v. Canaan, 38 N. H. 270; Kilpatrick v. Breashear, 10 Heisk. (Tenn.) 371; McKinder v. Littlejohn, 4 Ired. (N. C.) L. 200; Wells v. Washington, 6 Munf. (Va.) 532; Yarnell v. Moore, 3 Cold. (Tenn.) 173.

      Absence of a debtor from the State where the contract was made or to be performed does not prove, and does not tend to prove, that the debt had not in fact been paid: Kline v. Kline, 20 Penn. 503; Sanderson v. Olmstead, 1 Chand. (Wis.) 190; McKinder v. Littlejohn, 4 Ired. (N. C.) 200; Thompson v. Thompson, 2 Head, 406.
    Neither does a demand of payment within twenty years before suit brought, met by a refusal to pay: Sellins v. Holman, 20 Pa. St. 321; Palmer v. Dubois, 1 Mill’s (S. C.) Const. 178.
    When there are two joint payors or obligors, and the presumption of payment has attached to the instrument sued on, proof of circumstances which rebut the presumption as to one of them, or even proof that one of them has not paid the debt, will not rebut the presumption that the debt is paid: Wilfgong v. Cline, 1 Jones (N. C.) L. 500; Boardman v. Deforest, 5 Conn. 8; Rowland v. Windley, 86 (N. C.) 38; Pearsall v. Houston, 3 Jones (N. C.) L. 346; Powell v. Breakley, Busb. (N. C.) 154; Frazer v. Perdivaux, 1 Bailey (S. C.), 172.
    The note sued on was fully barred by the limitation laws of the State of Nebraska prior to the commencement of this suit, and no suit can be maintained on said note in this State: R. S., Ch. 83, § 20; Hyman v. Bayne, 83 V. 256; Hyman v. McVeigh, 10 Legal News, 157; Osgood v. Artt, U. S. Ct. (Ill.) 1882, (unreported); Bemis v. Stanley, 93 Ill. 230; Wernse v. Hall, 101 Ill. 423.
    Mr. M. Blanchard, for defendant in error;
    that the lapse of twenty years is only a circumstance on which to found a presumption, and is not of itself a bar, cited Jackson v. Price, 1 Johnson, 414; McDowell v. Charles, 6 Johns. Ch. 32; Oswald v. Leigh, 1 Tenn. 271; Wood on Limitation of Actions, 339; Lyon v. Adde, 63 Barb. 95.
    Slighter circumstances are sufficient to repel the presumption than are required to take a case out of the Statute of Limitations: Foulk v. Brown, 2 Watts, 215; Eby v. Eby, 5 Barr. 437-8.

      The legal presumption is nothing more than a transfer of the onus of proof from the debtor to the creditor: 2 Wharton on Ev., § 1361; Reed v. Reed, 46 Penn. 242.
    The presumption only raises a prima facie case against the plaintiff: Stout v. Leone, 3 Barr. 235; Ankering v. Penrose, 18 Penn. 193; Dunlap v. Ball, 2 Cranch, 180; Bailey v. Johnson, 16 Johns. 210.
    In England, where this doctrine of presumption arose, the rule is, “ continued residence abroad rebuts the presumption”: Newman v. Newman, 1 Starkie Ca. 101; Heller v. Waller, 12 Veasey, 266; Flandong v. Winter, 19 Veasey, 200; Starkie on Ev. (10th ed.) 74.
    In this country it is held in many of the States that absence of the debtor from the State during the greater part of twenty years rebuts the presumption of payment, whether the absence be in a remote or an adjoining State: Daggett v. Tollman, 8 Conn. 168; Lynde v. Dunne, 3 Conn. 387; Boardman v. Deforest, 5 Conn. 1; Clark v. Clement, 33 N. H. 563; Jackson v. Pierce, 1 Johns. 417; Bailey v. Pierce, 16 Johns. 214; Shields v. Prengle, 2 Bibb (Ky.), 387; 2 Best on Ry., § 402; Locke v. Caldwell, 91 Ill. 417.
   IVIoAllisteb, P. J.

We are of opinion that under the uncontroyerted facts proved and stipulated, the defendant below was entitled to judgment upon the following grounds: The action was barred by the Statute of Limitations. Section twenty of that statute, R. S. 1874, p. 676, is as follows: When a cause of action has arisen in a State or Territory out of this State, or in a foreign country, and by the laws thereof an action thereon can not be maintained by reason of the lapse of time, an action thereonj shall not be maintained in this State.

Now it is true that the instrument sued upon was made in this State, April 21, 1857, payable in six months from that date to payees, residing in the State of New York; but it was payable at the office of Fish, Goodale & Co., and where that was located does not appear. It appears that the defendant below, Humphrey, left this State, April 1, 1859, and went to Nebraska to reside, and has remained a resident there ever since, a period of upward-of twenty years. It also appeals by the statutes of Nebraska that an action on the instrument in question would be barred there after the period of five years.

It will be presumed that there were courts in the State of Nebraska which had jurisdiction of such cases, when properly invoked. Such courts were always, during the time of Humphrey’s residence there, open to the payees mentioned in said instrument, or to the plaintiff below, whose place of residence during that time does not appear.

In Hyman v. McVeigh, decided by the Supreme Court in 1878, reported in the Chicago Legal News, Vol. 10, p. 157, and mentioned among the unreported cases at the end of 87th Ill., the phrase in our statute, “when a cause of action has arisen in a State or Territory out of this State,” was construed. And the court say the words, “ when a cause of action has arisen” as they occur in the statute pleaded, should be construed as meaning when jurisdiction exists in the courts of a State to adjudicate between the parties upon the particular cause of action, if properly invoked, or in other words, when the plaintiff has the right to sue the defendant in the courts of the State upon the particular cause of action, without regard to the place where the cause of action had its origin.”

We are unable to perceive any reason from the facts of this case, why it is not governed by said section twenty of our limitation law, under the construction of that section so given, by the Supreme Court.

When the instrument in suit was introduced in evidence it appeared on its face to have been due more than twenty years prior to the bringing this suit. That being so, then according to the weight of the authorities cited by the counsel for Humphrey in his very thorough and comprehensive brief, it seems to us that the common law presumption of payment arising from such lapse of time, necessarily arose from what thus appeared; and that there is nothing in the facts stipulated or in the évidence, sufficient to rebut that presumption; especially is that so as to the joint maker, Parmenter. Payment by him would extinguish the claim the same as if made by Humphrey. That is elementary law.

Being of opinion that, upon the facts stipulated and the proper inference to be drawn therefrom, the judgment below should have been for the defendant, it is therefore reversed.

Judgment reversed.


author: Bailey, J.

text:
    Louis Sievers v. James F. Griffin et al.
    1. Bronek — Commissions.—A broker, before he is entitled to commissions, must furnish a purchaser who .is ready, willing and able to complete the purchase on the terms proposed.
    2. When broker entitled to commissions. — Where by agreement with the owner, plaintiffs were to sell the property, or receive no commissions, and an agent of the purchaser seeing plaintiffs' advertisement of the property, went to them and had an interview, but the principal for whom he was acting was not disclosed, and this interview was not communicated to the owner, and another agent of the purchaser after learning from sources other than the plaintiffs who was the owner, negotiated with him directly for the property, and the owner, in ignorance of the interview with plaintiffs, made the sale himself. Held, that plaintiffs were not entitled to commissions. The broker must be instrumental in introducing the buyer and seller to each other. Merely being instrumental in putting the purchaser on the track of the property does not amount to furnishing a purchaser to the vendor.
    •Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed December 21, 1883.
    Mr. E. M. Haines, for appellant;
    that where a broker finds a purchaser but fails to report such fact to the principal, and the sale is completed by a second broker before notice is given to the principal by the first broker, the latter is not entitled to commissions, cited Tinges v. Moale, 25 Mo. 480; Chandler v. Sutton, 5 Daly, 112.

      Messrs. E. & A. Yan Buben, for appellees;
    that the evidence sustains the judgment, cited Rees v. Spruance, 45 Ill. 308.
   Bailey, J.

This was art action of assumpsit, brought by Griffin & Dwight against Sievers, to recover commissions upon a sale of certain real estate of the defendant. A trial being had before the court without a jury, the issues were found for the plaintiffs, and their damages assessed at $170, for which sum and costs the plaintiffs had judgment.

The plaintiffs, as it appears, are real estate brokers, and the defendant, being the owner of a certain lot in the city of Chicago, employed the plaintiffs to sell it. The contract or arrangement by which the lot was placed in the plaintiffs’hands for sale, was made by the defendant and Griffin, and while there is some conflict in the evidence as to some of the-attendant circumstances, the testimonj' of these two witnesses as to the terms of the contract itself, so far as material in this case, is not essentially inharmonious.

Griffin testifies that the defendant came to his office and wished him to sell the lot, and gave him a description of it; that on going to see it, he found on it several boards, placed there by other real estate firms, advertising it for side, and that he then told the defendant that the plaintiffs could not take bold of the property or sell it, unless those boards were removed, and the parties who placed them there notified; that the defendant thereupon agreed to have said boards removed, which was afterward done; that an agreement was then made that the plaintiffs should undertake to sell the lot, and that their commissions should be two per cent. He admits, however, on cross-examination, that the agreement was that if they did not sell the property, they should ask no commissions.

The defendant testifies that prior to any negotiations with the plaintiffs, he had placed the lot in the hands of several other real estate firms for sale; that an employe of the plaintiffs came to him and asked him if he would sell the lot; that he replied that he had it in the hands of several parties already, and did not wish to give it to any others; that shortly afterward he received a postal card from the plaintiffs, asking him to call at their office; that he called as requested, and had an interview with Griffin, in which he told Griffin that he had already placed the property in the hands of several parties for sale, and that the plaintiffs might also undertake to sell it if they wanted to, but that whoever sold it should get the commissions; that he then gave Griffin a description of the property, and that Griffin then requested him to sign a written contract, which he declined to do for the reason that contracts with other parties were outstanding, and that he would not sign any more, repeating the proposition that whoever sold the property should get the commissions, to which Griffin assented.

The plaintiffs afterward advertised the property for sale, and one Wilson, a freight agent of the Chicago, Milwaukee and St. Paul Eailway Company, seeing one of said advertisements, called the attention of the superintendent of said company to it, and at his direction called on the plaintiffs to ascertain the terms on which the lot could be purchased. Wilson, it seems, purposely concealed from the plaintiffs the fact that hewas acting for the railway company, but told them that certain parties in Milwaukee wanted the lot for a manufacturing site. The plaintiffs gave Wilson the price at which it could be bought, but do not,'appear to have ascertained from him, or from any other source, the name or identity of the proposed purchaser, or to have made any inquiries on that subject, nor do they seem to have disclosed to Wilson the name of, the owner of the lot, nor to have reported to the defendants in any way, the visit of Wilson to their office, or communicated to him the fact that some person, to them unknown, was seeking through Wilson to become a purchaser of the lot.

Wilson communicated the information received from the plaintiffs to the superintendent of the railway company, and he placed the matter in the hands of the company’s attorney, with instructions to make the purchase. The attorney thereupon employed one Mitchell, a real estate broker, to conduct the negotiations, and he, after obtaining from the public records the name of the owner, went directly to the defendant and bought the lot of him, and was paid a commission by the defendant. The plaintiffs on their part took no steps toward consummating the sale, but afterward seeing in a public newspaper a statement that a sale had been made to the railway company, demanded of the defendant that he pay them commissions therefor, and on his refusal brought this suit.

¥e are of the opinion that the finding and judgment are unsupported by the evidence. Even if the plaintiffs had been employed merély to find a purchaser, without any undertakingon their part to go on and consummate a sale, it can not be said that they so far performed the business of their employment as to entitle them to commissions. As said in Pratt v. Hotchkiss, 10 Bradwell, 603: “ The true doctrine applicable to cases of this character is, that a broker, before he is entitled to commissions, must furnish a purchaser who is ready, willing and able to complete the purchase on the terms proposed.”

Did the plaintiffs furnish or present a purchaser to the defendant? Who the party proposing to purchase was, they did not know, and took no pains to inquire. True, they had an interview with the purchaser’s agent, but the principal for whom he was acting was not disclosed to them, and so could not have been communicated by them to the defendant, and even the fact that the interview had taken place was concealed from the defendant. Another agent of the purchaser, after learning from sources other than the plaintiffs who the owner of the property was, negotiated with him for it directly, and he, in ignorance of the fact that another agent of the same principal had been to the plaintiffs to inquire about the property, made the sale himself.

It can not then be said that the plaintiffs presented the purchaser to the defendant. It is true the attention of the purchaser seems to have been first called to tbe property by an advertisement published by the plaintiffs, but merely being instrumental in putting a purchaser on the track of property, does not amount to furnishing or presenting the purchaser to the vendor. The buyer and seller must be in some way brought together or into communication, before the broker has discharged the duties of his employment so as to entitle himself to his commissions. In other words, he must be instrumental in introducing the buyer and seller to each other.

But the evidence clearly shows that by the agreement between the parties, the plaintiffs were to sell the property or receive no commission. This is sworn to by the defendant and admitted by Griffin. That the plaintiffs made the sale is not pretended. It is clear then that, by the very terms of their contract, they are entitled to no commissions.

The judgment being against the evidence, it will be reversed, and the cause remanded:

Judgment reversed.


text:
    R. S. Andrews v. E. R. Esher.
    1. Dismissing appeal — Absence oe transcript. — A circuit court has no jurisdiction to dismiss an appeal, without the consent of the appellant, in the absence of a transcript from the justice.
    2. Jurisdiction. — Such jurisdiction is not acquired by ruling the appellant to file the transcript within a certain time, so as to authorize the court to dismiss the appeal for non-compliance with such rule.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed December 21, 1883.
    Mr. Frank H. Goin, for appellant;
    that the circuit court had no jurisdiction of the subject-matter of the cause, and no power to try or dismiss the appeal, cited McMullen v. Graham, 6 Bradwell, 239; Steinborn v. Thomas, 8 Bradwell, 515; Reed v. Driscoll, 84 Ill. 96.
    Mr. E. R. Esher and Mr. ¥m. Ritchie, for appellee;
    that the circuit court had jurisdiction to dismiss the appeal, cited Rozier v. Williams, 92 Ill. 189; Kemper v. Town of Waverly, 81 Ill. 280; Brown v. Modisett, 3 Blackf. 382; Butler v. Skomp, 3 Blackf. 392; Dougherty v. Mason, 4 Blackf. 432; Campbell v. Quinlin, 3 Scam. 288; Little v. Smith, 4 Scam. 400.
   Bailey, J.

Esher, the plaintiff, recovered a judgment against Andrews, the defendant, for $30 and costs, before a justice of the peace, and the defendant thereupon took an appeal to the circuit court, by filing his appeal bond in the office of the clerk of that court. Mo summons seems to have been issued by the clerk to the appellee, nor was any transcript from the justice of the peace filed in the circuit court. After the lapse of several terms, the plaintiff voluntarily entered his appearance in writing, and on his motion, the defendant was ruled to file the appeal papers in the circuit court within ten days. At the expiration of the rule the transcript and papers from the justice of the peace not having been filed, the court, on motion of the plaintiff, dismissed the appeal at the defendant’s costs for non-compliance with the rule, and awarded a procedendo to the justice.

....’ The facts bring the case precisely within the rule announced in Schmidt v. Skelly, 10 Bradwell, 564, and Bonfield v. McGreavy, Id. 577. We there held that the circuit court has no jurisdiction to dismiss an appeal without the consent of the appellant, in the absence of a transcript from the justice, and that such jurisdiction is not acquired by ruling the appellant to file the transcript within a certain time, so as to authorize the court to dismiss the appeal for non-compliance with such rule. We are urged to reconsider the question, and some of the reasons presented for the adoption of a different rule commend themselves to our minds as possessing considerable cogency. We think, however, that the rule announced in the cases above cited, is the only logical result of the decisions of the Supreme Court in Reed v. Driscoll, 84 Ill. 96, and Sheridan v. Beardsley, 89 Id. 477. Were the question an open one, we might possibly reach a different result, but adopting, as we are bound to do, the law as laid down by the Supreme Court, we adhere to our former decisions.

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

Judgment reversed.


author: 'Wilson, J.

text:
    Alonzo W. Rollins et al. v. Owen Duffy.
    sorted, to when there is a special contract and the breach of the contract is the gravamen, of the action. In such cases, the plaintiff must declare specially. But when the contract has been completely executed, so that only a duty to pay the money remains, a recovery may be had under the common counts in indebitatus assumpsit. I. Pleadings — Common counts, — The common counts can not be re-
    2. Special plea, when necessary. — Where the claim of appellee was not to enforce payment of moneys actually received by appellants on a sale of certain goods, but to compel them to respond in damages for the amount appellee lost, by reason of their breach of contract, appellee should have advised appellants by a special plea of the grounds of such claim and it was not admissible under the common counts.
    3. Evidence — Offers to compromise. — The declarations of a party made after the transaction is closed, and which are merely a recital of the transaction, such as the party then chooses to give, and especially, offers by him to compromise, can not be used by him as evidence in his own favor.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Cary, Judge, presiding.
    Opinion filed December 21, 1883.
    This was an action of assumpsit by appellants against appellee, to recover an over-draft of $191.95, made on them by appellee, and by them paid. Appellants were commission men, doing business in Chicago, and appellee is the proprietor of the Leavenworth Woolen Mills, at Leavenworth, Kansas. In September, 1881, appellee was in Chicago, and had a conversation with appellant, Shaw, in relation to appellant’s selling for him some woolen blankets, samples of which he had prior to that date sent them. As the l’esult of that conversation, 553 blankets were shipped by appellee to appellants, and by them, as commission merchants, were sold during the month of October, 1881, to various parties, and an account of the sales of the same was made out at the end of the month and forwarded to appellee.
    During the same month, a second consignment of 500 blankets was made to appellants in response to a letter written by them to appellee, which said consignment was received the latter part of said month. Appellee’' drew drafts upon appellants of $2,500, October 8th, and $1,500 October 17th, which were paid.
    After paying the last draft, appellants notified appellee that he had overdrawn, and that they did not hold goods enough to make the deficit good. The last consignment of blankets, owing to the dullness of the market, were not sold that season, but were carried over to 1882, when appellants were obliged to sell them at a greatly reduced price.
    Appellants claim that they received the blankets as commission men, to sell and dispose of to the best advantage, and that they have sold and disposed of them at the highest market prices. Appellee claims that he made a special contract with appellants, September 20, 1881, in and by which appellants guaranteed a sale of the blankets to net him forty-eight cents per pound over and above all expenses. Appellee filed a plea of set-off containing only the common counts, and under said plea claimed as a balance due him from appellants, $179.
    The case was tried -by a jury, resulting in a verdict for appellee for $179, for which he had judgment. The plaintiff’s motion for a new trial being overruled, they appealed to this court.
    Hr. Frank S. Weigley, for appellants;
    that when there is a special contract, and the breach of the contract is the gravamen of the action, plaintiff must declare specially, cited Russell v. Gilmore, 54 Ill. 149; Phoenix M. L. Ins. Co. v. Baker, 85 Ill. 414; 1 Chitty on Pl. 387.
    A special agreement for the exchange of notes, with a warranty of the note exchanged, can not be given in evidence in support of the money counts: Richardson v. Smith, 8 Johns. 439, Markley v. Withers, 4 T. B. Monr. 15; Spratt v. McKinney, 1 Bibb, 597; Morris v. Cleasby, 4 M. & Sel. 566; Tracey v. Rogers, 69 Ill. 662.
    Where a factor sells below the price named in the instructions, in an action by the principal for the wrongful sale, it is competent for the factor to show, in reduction of the damages, that the goods at the time of the sale and down to the time of trial were worth no more than the price at which they were sold: Blot v. Boiceau, 3 Comst. 78; Frothingham v. Evertom, 12 N. H. 239; Parker v. Braucker, 22 Pick. 45; Brown v. McGraw, 14 Pet. 494; Field v. Farmington, 10 Wall. 149; Austin v. Crawford, 7 Ala. 342; Ainsworth v. Partillo, 13 Ala. 460; Hilton v. Vanderbilt, 82 N.Y. 591; Blair v. Childs, 10 Heisk. 199; Beadles v. Hartmus, 7 Baxt. 476.
    Declarations and statements of a party made after the transaction was had, and which are merely a recital of such transaction as such party then chooses to relate, and offers by him to compromise, etc., can not be used by him in his own favor: Wilson v. Sherlock, 36 Me. 297; Small v. Gilman, 48 Me. 515; Banfield v. Parker, 36 N. H. 358; Salem v. Lynn, 13 Met. 544; Johnson v. Sherwin, 3 Gray, 374; Young v. Commonwealth, 28 Penn. 501; State v. Black, 6 Jones L. 510; Rutland v. Haythorne, 36 Ga. 380; Webb v. Kelly, 37 Ala. 340; Hall v. State, 40 Ala. 706; Brand v. Abbott, 42 Ala. 501; Simmons v. Norwood, 21 La. Ann. 421; Gardner v. The People, 3 Scam. 83.
    Mr. Edward F. Comstock, for appellee;
    that the objection as to the introduction of evidence to prove a special contract, can not be raised for the first time in this court, cited Wilhelm v. The People, 72 Ill. 468; Hartford Ins. Co. v. Farrish, 73 Ill. 166; Brannan v. Strauss, 75 Ill. 234; Drury v. Dungan, 2 Bradwell, 15.
   'Wilson, J.

The principal contention in the trial court was, as to whether appellants guaranteed a sale of the blankets, as claimed by appellee, at a price that should net him forty-eight cents, or whether the blankets were to be sold by appellants, as claimed by them, on commission, for the best price they could get. On this question the evidence was conflicting, scrrd the jury having found for appellee, we must assume, for the purpose of the present appeal, that they adopted his theory of the case. At forty-eight cents per blanket, the two drafts for $2,500 and $1,500, respectively, drawn by appellee on appellants, were more than paid by the sum of $179, the amount found by the jury in appellee’s favor. The first question, therefore, to be considered, is whether appellee was entitled to judgment for such balance, under his plea of set-off.

The plea contains the usual averments of the common counts in a declaration in indebitatus assumpsit, for goods sold and delivered, materials furnished, money had and received, money due on an account stated, etc. Under this plea appellee- seeks to recover damages for the breach of a special contract, the substance of which is as stated above.

. The general rule is that the common counts can not be resorted to when there is a special contract, and the breach of the contract is the gravamen of the action. In such cases the plaintiff must declare specially. But where the contract has been completely executed, so that only a duty to pay the money remains, a recovery may be had under the common counts in indebitatus assumpsit. Russell v. Gillmore, 54 Ill. 149; 1 Chit. Pl. 340; Perkins v. Hart, 11 Wheat. 237; Jewell v. Schroeppel, 4 Cow. 564; 2 Phil. Ev. 83, in notes; 2 Greenl. Ev. § 104. If the blankets had been sold at the guaranteed price, leaving nothing to be done but the payment of the money, resort might have been had to the common counts. There is no sufficient ground in the evidence for claiming that the blankets were sold to appellants. Indeed, such is not appellee’s theory of the case. His position is that the blankets were shipped to -appellants under a contract that they were to be sold by them at a price that should be sufficient to net appellee forty-eight cents, appellants guaranteeing that they should be so sold. The claim is not to enforce payment of moneys actually received by appellants on a sale of the good?s but to compel them to respond in damages for the amount appellee lost by reason of their breach of the contract. We think appellee should have advised them by a special plea of the grounds of such claim, and that it was not admissible under the common counts.

The court, against the objection and exceptions of appellants, admitted in evidence the testimony of appellee, detailing a conversation had by him with appellant Rollins, as to his efforts to get appellants to compromise or submit their differences to arbitration, saying, among other things, that if he owed them a dollar he wanted to pay it, and pay it quick; that he had always paid every dollar he owed, but that he felt he ought to do what lie could to protect himself in this matter, and that he could not willingly pay more than what was right according to their agreement; that he appealed to him, and begged him to submit the matter to arbitration; that Rollins expressed his surprise at the position of affairs but said he had had trouble with his partners and could not interfere. The court, also, against the objection of appellants, admitted in evidence letters written by appellee to appellants in relation to attempted compromises, and containing charges of unfairness, offers to submit to arbitration, etc. This testimony did not tend to prove or disprove any issue in the case, and was clearly inadmissible. Its manifest tendency was to prejudice the minds of the jury against appellants and in favor of appellee. Moreover, it was not the admissions of his adversary, but was appellee’s own statement and declarations, made long after the difficulties between the parties arose; nor was it any part of the res gestae of the original transaction. It does not need the citation of authorities to show that the declarations of a party made after the transaction is closed, and which are merely a recital of the transaction, such as the party then chooses to give, and especially, offers by him to compromise, can not be used by him as evidence in his own favor.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: Wilson, J.

text:
    L. W. Counselman et al. v. Nicholas Whitehair.
    1. Collision — Accident.—From the facts as shown by the evidence, the court is of opinion that the collision was wholly accidental and without fault on the part of defendants. '
    2. Yeedict against weight oe evidence. — Where there is no evidence to sustain a verdict, or where the verdict is manifestly against the weight of the evidence, the judgment will be reversed.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed December 21, 1883.
    Mr. S. K. Dow and Mr. J. Burnham, for appellants;
    that the burden of proof to show negligence was on appellee, cited Quinlan v. Sixth Av. R. R. Co., 4 Daly, 487; Deyo v. N. Y. Cent. R. R. Co., 34 N. Y. 9; Lane v. Crombie, 12 Pick. 177; Allen v. Willard, 57 Penn. 374; Cotton v. Ward, 98 Eng. C. L. R. 588; Hammock v. White, 103 Eng. C. L. R. 588; Lehman v. City of Brooklyn, 29 Barb. 234; Bigelow v. Reed, 51 Me. 325; Brown v. Collins, 53 N. H. 442; Hunting v. Baldwin, 6 Bradwell, 547.
   Wilson, J.

This was a suit brought by appellee against appellants, before a justice of the peace, to recover damages for an injury to a carriage, caused by a collision with appellants’ wagon.

The case was taken by appeal to the superior court, where it was submitted to the court for trial without a jury, and judgment for the plaintiff for $50 was rendered. The defendants bring the case here for review, and assign as one of the errors that the verdict was against the evidence.

The case was this: One Eddy was driving plaintiff’s carriage west on Lake street near Market. Defendants’ horse and wagon was also being driven west on the same street, at some distance behind the plaintiff’s carriage, when defendants’ horse suddenly became frightened, and started to run. The driver endeavored to stop him, but being unable to do so, as he was approaching plaintiff’s carriage, he shouted to Eddy to get out of the way. As both were prevented from turning out by a line of passing vehicles, defendants’ horse ran against the plaintiff’s carnage, doing the damage complained of.

Erom the facts as shown by the evidence, the collision seems to us to have been wholly accidental, and without fault on the part of the defendants. Their horse was being driven by a competent driver, who testifies that he did his utmost to control him, but without avail. The horse was of good disposition, and had been driven by the man who drove him at the time of the accident, for several months, to all parts of the city, and this was the first time he had ever attempted to run away. We fail to perceive in what respect the defendants were chargeable with negligence, or were in any way at fault.

The rule is settled in this State that where there is no evidence to sustain a verdict, or where the verdict is manifestly against the weight of the evidence, the judgment will be reversed. Reynolds v. Lambert, 69 Ill. 495; T. U. & Western R. R. Co. v. Moore, 77 Ill. 217. The judgment of the court below is reversed.

Reversed.


author: McAllister, P. J.

text:
    John Clifford v. William H. Drake.
    1. Evidence. — Where an alleged libelous article in a newspaper to which it was proposed to have the writer look for the purpose of refreshing his memory, was admissible in evidence and the ultimate object was to have the article itself admitted in evidence, as constituting the gist of the action. Held, that it was material whether the writer had lost his manuscript or not because the manuscript was the better evidence when it-was sought to give the printed article in evidence.

      2. Bill of exceptions. — Where an alleged libelous article js not set out in the bill of exceptions it is impossibe for this court to pass upon the question whether the plaintiff was prejudiced by the action of the court below in excluding such article.
    3. Failure to prove cause of action. — Where a plaintiff fails to prove his cause of action, and such failure is not the result of erroneous rulings of the court, all other alleged errors are immaterial.
    4. Instruction — Consent of counsel. — Where a court gave the peremptory instruction to the jury to find for the defendant, and the bill of exception showed that plaintiff’s counsel expressly consented that the court might so instruct, and no exception was taken, plaintiff can not assign error for such action.
    Appeal from.the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 21, 1883.
    This suit was by Clifford against Drake, for an alleged libel charged to have been published by defendant, Dec. i, 1879, in the Chicago Sunday Times, reflecting upon the capacity and integrity of plaintiff as an architect, and thereby causing special damages. On the trial, under the plea of not guilty, the plaintiff sought to prove the charge that defendant published the alleged libel by showing that the defendant made statements concerning plaintiff’s ability and integrity as an architect, to a reporter of said paper, with knowledge on the part of defendant that such statements were to he published therein. The reporter, E. E. Cook, was called by plaintiff as a witness and testified, in substance, that such interview was had a few days before the publication; that he took correct notes of the conversation, from which he prepared an article or statement in form for publication; that his original notes were then destroyed, and when the article was set up in the paper, his manuscript of such article went into the waste-basket, and he had never seen it since; that the article was in the Sunday Times; that immediately after the publication, witness read it and compared it mentally with the manuscript, that it was correct, and a correct statement of what was said at said interview. The .bill of exceptions shows that a paper was shown to the witness, and he was asked if that contained the article of which he had been speaking, and he answered that it did. Plaintiff’s counsel having exhausted the recollection of the witness by questions and failing to elicit anything that was said at the interview tending in a direct manner to prove that defendant, at that time, knew that it was the purpose of the interview to have it published in the paper, then as the bill of exceptions shows “ Plaintiff’s counsel asked permission to put the paper into the hands of the witness and allow him to refresh his recollection from it;” that the counsel for defendant objected to it, the court sustained the objection and plaintiff’s counsel excepted.
    Afterward, in the course of the trial and before the plaintiff rested, as the bill of exceptions shows, his counsel made this offer: “ I offer in evidence a copy of the Times, identified by Mr. Cook, yesterday, as containing a correct statement of what he received from Mr. Drake.” To this defendant’s counsel objected, the court sustained the objection, and plaintiff’s counsel excepted. The reporter Cook, testified to facts and circumstances which tended to show that the defendant, Drake, knew, or had good reason for believing, that the statements he made to the reporter were to be published in the Chicago Times. He knew that the reporter belonged to that paper, and that he was one of its reporters. He knew that the reporter had come to him to interview him in respect to the qualifications, etc., of the plaintiff as an architect, because the latter had been appointed architect of the new City Hall in San Francisco, Cal., and that the editor of a newspaper there had called the attention of the Times to the matter, Avith the desire that the Times should make an investigation as to plaintiff’s qualifications and reliability. But the bill of exceptions wholly fails to incorporate the article offered in evidence, from a copy of the Times, or the article to which counsel asked permission to have the witness refer for the purpose of refreshing his memory, or any part thereof; nor is the same or any part thereof, in any manner described in the bill of exceptions, which further shows that, at the close of plaintiff’s evidence, the court, by the express consent of plaintiff’s counsel, directed the jury to find for defendant, to ■which no exception was taken. A motion for a new trial was made by plaintiff and overruled; to which exception was taken.
    Judgment passed for defendant, and plaintiff brings the record here by appeal.
    Mr. .Robert Hervey, for appellant;
    that it was error to refuse witness the right to look at the article in the newspaper to refresh his memory, cited 1 Greenleaf on Ev. § 436.
    Messrs. Egberts & Hutchinson, for appellee;
    that the proper foundation was not laid for witness to refresh his recollection, cited Strader v. Snyder, 67 Ill. 404; Adams v. Kelley, Ry. & Moo. 157; Burton v. Plumer, 2 A. & E. 341-343.
   McAllister, P. J.

"We are of opinion that there was sufficient evidence, upon the trial below, that an article published in some copy of the Chicago Sunday Times, contained a correct account of the interview between the reporter of that paper and the defendant; and also, that there was some evidence tending to show knowledge on the part of the defendant, at the time, that such interview was to be published; but whether it was sufficient to' require the submission of that question to the jury, it is not necessary for us to decide. We are further of opinion, that there was sufficient evidence of the loss and destruction of the original notes of the reporter, and of the manuscript of the article which was published, to constitute such printed article the best evidence of the written account of what passed between the reporter and the defendant (and which was furnished by the reporter to the Times), that the case admitted of. Strader v. Snyder, 67 Ill. 408, and case cited. Starkie says: “Whether the writing be used merely as an instrument for restoring the recollection of a fact or be offered to be read as containing a true account of particulars entirely forgotten, it must, in conformity with the general principle of evidence, be the best for the purpose that the case admits of.” 1 Stark on Ev. 178.

We think the printed article was the best evidence of which the case admitted, under the circumstances shown. In 2 Phil, on Ev., 5th Am. ed.,* p. 925, it is said: “Where a witness on looking at a written paper has his memory so refreshed that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been, actually written by him. So also, where the witness recollects that he saw the paper when the facts were fresh in his memory, and remembers that he knew then the particulars therein mentioned to be correctly stated, his testimony is admissible.” And again, same volume, * p. 928: “A surveyor has been permitted to refresh his memory by a printed copy of a report furnished by him to his employes, and compiled from original notes, of which it was substantially, though not verbally, a transcript.” Herne v. MacKinzie, S. Cl. & Fin. 628, 630, 645. “And the-writer of an article in a newspaper, the manuscript of which article has been lost, has been allowed to look at the newspaper containing the article, for the purpose of refreshing his memory.”' Tipham v. McCregor, 1 C. & K. 320; 1 Greenleaf on Ev. § 436; 1 Whart. on Ev. § 519 et seq; Addler v. Railroad Co. 56 Ill. 344.

The case of Commonwealth v. Ford, 130 Mass. 64, contains a thorough review of the authorities and conclusively shows that it would have been entirely competent and proper for the witness, Cook, to have looked at the article in the paper, for the purpose of refreshing his recollection. The case in hand is different from that, in this respect: Here, the ultimate object was to have the article itself admitted in evidence, as constituting the gist of the action. In Commonwealth v. Ford, supra, the paper, to which it was proposed to have the witness look for the purpose of refreshing his memory, was in no event admissible. Hence, it was held that it was not material whether the reporter’s manuscript was lost or not. But in this case it would be material, because the manuscript was the better evidence, when it was sought to .give the contents of the printed article in evidence. Strader v. Snyder, supra. The matter of refreshing the memory of the witness by looking at such printed article would be of no consequence whatever, unless the article itself was of a defamatory character, referred to the plaintiff, and amounted not only to a libel, but the particular libel described in the declaration. Such article, therefore, whether offered for the purpose of refreshing the memory of the witness, or because it contained a true account of what passed between the witness and defendant, is to be regarded as a proposed instrument of evidence. We think sufficient was shown to bring it within the rule, applicable here, that the best evidence the case admitted of should be given. But how can we determine that the particular printed article referred to had any relevancy whatever to this case? It is not incorporated into the bill of exceptions.

In order to show that the plaintiff was prejudiced by the ruling below, it was indispensable that such article should be set out in the bill of exceptions. McLaughlin v. Walsh, 3 Scam. 185; McBain v. Enloe, 13 Ill. 76; Warner v. Manski, 17 Ill. 234; Deem v. Crume, 46 Ill. 69; Stock v. The People 80 Ill. 32.

The appellant can, therefore, take nothing by that assignment of error. Nor can he prevail upon the assignment of error, upon giving the peremptory instruction to the jury, to find for the defendant, because the bill of exceptions shows that his counsel expressly consented that the court might so instruct, and, besides, no exception was taken to it.

Neither is the assignment of error, upon overruling the-plaintiff’s motion for anew trial: well grounded. The plaintiff wholly failed to prove any cause of action, because, perhaps, of the exclusion of said printed article. Now, unless that was error, there is no ground for a new trial. We can not say whether it was or not, because we can know nothing about that article. When a plaintiff fails to prove his cause of action, and such failure is not the result of erroneous rulings' of the court, all other alleged errors are immaterial.

Judgment affirmed^


text:
    The Pennsylvania Company v. Edwin Edwards.
    1. Negligence. — Where appellee had a car load of wheat standing upon a warehouse track and the track was for the use of the warehouse, and was not one of the regular team tracks but was so located that teams for unloading were in danger from appellant’s locomotives, and appellee’s teamster asked appellee to send some one with him to watch for trains and no one was sent, and at dusk, while the teamster was loading the grain and was in the car where he testified he could not hear the signals sounded on account of the noise outside, appellant’s train collided with the team and caused injury. Held, that appellee and his teamster were guilty of gross negligence in thus exposing the property to danger and such negligence was the primary cause of the injury.
    Appeal from the Superior Court of Coolc county; the Hon. Elliott Aethoey, Judge, presiding.
    Opinion filed December 21, 1883.
    Messrs. Willard & Drig&s, for appellant.
    Mr. L. C. Cooper, for appellee.
   McAllister, P. J.

This action was brought in the court below, by appellee Edwards against the appellant company, to recover damages for an injury to the team, wagon, etc., of plaintiff, occasioned by a collision therewith by one of defendant’s locomotives, while moving a train of freight cars along what was known as West Water street, in the city of Chicago, at a point between Randolph and Lake streets, being about a hundred feet north of the Randolph street viaduct. The plaintiff recovered, and the defendant has appealed to this court. It appeared on the trial, under the general issue, by undisputed evidence, that the plaintiff had a car load of wheat standing upon a warehouse track, which runs up to Lylte’s warehouse, situate between one hundred and one hundred and fifty feet north of the Randolph street viaduct, which car had been standing there some four or five days. The track on which it stood was for the use of that warehouse and was not one of the regular team-tracks, as they are called, which are so located that teams may be placed for loading and unloading cars, without danger from locomotives, and trains running upon either of the main tracks. On the morning of January 3, 1881, the plaintiff directed his teamster, having charge of the team in question, to take it, and haul the wheat from said car over to a warehouse in the north division of Chicago. The teamster, being aware of the situation of said car, requested plaintiff to send somebody with him to assist in watching for trains. Nobody was sent, and the teamster went alone for the purpose. Having drawn away two loads during the day, he went alone, just at the dusk of the evening, for a third load. The wagon was a large grain wagon. The wheat was in a grain or box car, and from its situation, he was obliged to place the wagon so that a portion of it as well as the horses were in close proximity to and partly upon one of the main tracks, which was in daily use by the passing and re-passing of locomotives and freight trains, and which were likely to come along, on such track, at any time. The teamster was obliged to go into the car, and shovel out the grain into the large box of the wagon; there were several hundred bushels of wheat in the ear, much more than he could take at that load. The dai'kness of night was fast approaching; he had no light and no one to watch for him. Besides, vehicles were constantly passing over the ^Randolph street viaduct, making such a noise, that, as he himself testified, he could hear neither whistle nor bell of locomotives, if sounded or rung. While he was thus engaged a locomotive hauling a train of fifteen freight cars of defendant, coming from the south, at a slow rate of speed, collided with the team and wagon so situated, killing one of the horses, injuring the other, and doing some damage to the wagon and harness.

We have examined the record in this case with care, and are brought to the conclusion that the plaintiif and his teamster were guilty, not only of a want of -ordinary care, but of gross negligence, in thus exposing the property in question to danger; and that such negligence was the primary cause of the injury. If the plaintiff and his teamster were guilty of only ordinary negligence contributing to the injury, then it would be incumbent upon the plaintiff, who was subject to the burden of proof to prove that the injury was willfully inflicted by the agents or servants of the defendant, having the care and management of the colliding train. C., B. & Q. R. R. Co. v. Johnson, Admr., 103 Ill. 520-1. The evidence does not even tend to prove a willful injury on their part. The bell was rung and the whistle sounded. They did everything reasonably practicable to avoid the injury, as soon as those in charge of the train discovered the team, which they had no reason to suppose would be there at such a time and under jsuch'circumstanees. The verdict of the jury was manifestly against the law and the evidence, and the court below should have set it aside. The judgment below will be reversed.

Judgment reversed.


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    Nelson Morris v. Lawrence Litchfield et al.
    1. Contract — To whom payment to be made. — If a party to a contract promise payment without saying to whom, it will he undersood that he promised payment to him from whom the consideration moved.
    2. Partnership, test op. — The contract in this case did not create a partnership between the parties to it. The essential test of a co-partnership, a sharing in the profit and loss, is wanting.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Akthobt, Judge, presiding.
    Opinion filed December 21, 1883.
    This action was brought by Litchfield & Eaton, of Boston, Mass., against Nelson Morris, of Chicago, upon the common counts in assumpsit for goods sold and delivered, upon the common money counts and upon an account stated. On the trial under the general issue, evidence was given on the part of the plaintiffs tending to'show that they, soon after February 9, 1880, furnished at Portland, Maine, materials and machinery for fitting up certain steamships with a refrigerator for the purpose of carrying dressed beef. There was no evidence tending to show that the defendant had any property interest in the vessels or in the navigation or use of them, but it did tend to show that he was a dealer in cattle and dressed meats doing business at the Union Stock Yards in Cook county, Ills.
    In order to maintain their action, the plaintiff's, after giving evidence tending to prove that Thomas Hoops had authority from the defendant for the purpose, introduced in evidence the following written contract, made February 9, 1880:
    Agreement between The Dominion Line S. S. Co., The Beaver Line, and Nelson Morris, Esq., represented by Thomas Hoops, of Chicago,' that the said steamship companies shall provide refrigerator space for the carriage of dressed beef or other perishable property, to the extent of not less that 800 tons on any one steamer, up to 500 tons on any one, and the said Nelson Morris agrees to pay for the entire space included in and occupied by the fittings provided for this purpose, one half the cost and maintenance of which shall be borne by the said Nelson Morris, it being understood that at the termination of the agreement the said fittings shall belong to the steamship companies, provided that in any renewal or revival of contract by which the business continues, no new charge for fittings is made.
    Mr. Nelson Morris undertakes to load one steamship every week, during the present winter, from Portland, and not exceeding two each week during the season of St. Lawrence navigation, it being understood that the Grand Trunk Hail-way will deliver the property when and where required by the steamship.
    The steamship companies pass one attendant both ways free, and the rate payable for the said space is to be £22 6s. sterling per ton of 40 cubic feet without primage; ice to be furnished by the shipper, and the surplus delivered in Liverpool to his agents, and the property loaded and discharged under the supervision of his agent. The steamship companies are not in any way to he livable and are to be held clear of any payment for real or pretended patent rights. The portable engine required for this service will be joint property, and so treated at the termination of the agreement.
    (Signed)
    Mississippi & Dominion S. S. Co. (limited).
    By Dan’l Torrance & Co., Agts.
    Canada Shipping Co. (limited).
    By Thomas Murray & Co. Agts.
    Thomas Hoops, for Nelson Morris.
    Montreal, 9th Feb., 1880.
    The court on behalf of the plaintiffs gave to the jury this instruction:
    10th. . “ If the jury 'believe from the evidence that Thomas Hoops executed the contract of February 9, 1880, and that he was fully authorized so to do by the'defendant, Morris, and if the jury believe from the evidence that the materials sued for were furnished for the purpose of fitting up steamships under the said contract, then the jury are instructed that the defendant is liable in this action for the fair value thereof, if such value has been shown by the evidence.” To the giving this instruction, defendant duly excepted.
    The jury having returned a verdict for plaintiffs for $1,702.06 damages, the court gave judgment, and the defendant brings the record here and assigns error.
    Mr. John C. Biohberg, for appellant.
    Messrs. Frank J. Smith & F. A. TIelmer, for appellees.
   McAllister, P. J.

The tenth instruction, and the last in the series given for the plaintiff below, directed the jury that, if they believed from the evidence that Hoops was authorized by the defendant, Morris, to execute the contract of February 9, 1880, and that he did execute it, and if they should further believe from the evidence that the materials sued for were furnished for the purpose of fitting up steamships under the said contract, then they were instructed that the defendant was liable in this action for the fair value thereof, if such value had been shown by the evidence. It will be perceived that this instruction contains no hypothesis that the materials sued for were furnished at the request, or by the direction of any one; but only that they were furnished for the purpose of fitting up steamships under the said contract. The plaintiffs were in no respect parties to that contract. The contract referred to purports to be and is between certain steamship companies as parties of the one part, and defendant as party of the other part. The plaintiffs were not included; they were strangers to it. Besides, the defendant undertook therein to pay for only one half of the cost of the fittings. To whom should it be understood that he promised to make that payment? To the parties from whom the consideration for.the promise moved. The rule is, that “if a party to a contract promised payment without saying to whom, it shall be understood that he promised payment to him from whom the consideration moved.” Chit, on Cont., 6th Eng. (10th Am.) ed., 79.

It can not admit of doubt, that the consideration for defendants’ promise of payment moved from the steamship companies, with whom plaintiffs were in no wise connected.

The contract did not create a partnership between the parties to it. The essential test of a copartnership — a sharing in profit and loss — is wanting. It is not pretended that the defendant had any interest in the steamships as co-owner or otherwise. By the contract, even the fittings, one half of the costs of which he promised to pay to.the companies, were to belong to such companies. It is too plain to justify any argument that the contract in question was one between carriers by water and a proposed shipper of particular kinds of goods, to ship which safely, required some new appliances and fittings in the vessels. These, it is clear, were to be provided by the carriers, to whom they were to belong; and on account of them and certain terms stipulated as to the carriage of the goods, the shipper promised to pay such carriers one half the cost of such fittings.

To say that this constituted the steamship companies and the defendant copartners, so that such companies were the agents of defendant and could hind him to any person whom they might employ to furnish such fittings, is a sheer perversion of the intent and meaning of that contract. As was well said by Lord Mansfield in Hoare v. Dawes, 1 Doug. 371: “ It would be most dangerous if the credit of a person who engages for a fortieth part, for instance, should be considered as bound for all the thirty-nine parts.”

Heither would the defendant be regarded as a joint contractor with the steamship companies, if they or either of the latter had ordered the material in question to be furni shed. The principles recognized in Coope v. Eyre, 1 H. Bl. 37, are directly applicable to the above proposition.

The instruction was 'erroneous and for the giving of it the judgment for plaintiffs must be reversed and the cause remanded.

Judgment reversed.


author: Wilsoh, J.

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    George S. Poppers v. Letitia Miller.
    . 1. Malicious pbosecution. — An action for malicious prosecution can not be maintained unless the proceedings complained of are terminated.
    2. Husband and wife — Evidence.—Appellee brought an action against appellant for malicious prosecution in causing her arrest on a charge of secreting certain personal property on which appellant had a chattel mortgage. Appellee claimed that she had paid the mortgage in full prior to her arrest, and among other payments testified to having paid certain sums to appellant’s wife. To disprove these alleged payments to the wife, appellant offered the latter as a witness, whom the court rejected as incompetent. Held, that although there is no direct proof that appellant’s wife was acting as his agent, appellee can not be heard to say that she was not so acting; that so far as the payment of the money to and its receipt by appellant’s wife was concerned, it was a transaction in a matter of business in which the wife was acting as the agent of her husband in respect to which particular transaction, she was a competent witness.

      Appeal from the Superior Court- of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 21, 1883.
    This was a suit for malicious prosecution, brought by appellee against appellant. The cause of action, as set out in the declaration, was the arrest of the appellee, at the instigation of appellant, on a charge of secreting certain personal property on which appellant had a chattel mortgage, executed by appellee to secure the payment of money loaned to her by appellant. The declaration was in the usual form, to which appellant pleaded not guilty. Among other instructions given by the court at the instance of the plaintiff, was the following: “ The court instructs the jury that if they believe from the evidence in this cause that the defendant made complaint against the plaintiff, and upon such complaint maliciously and without probable cause procured the arrest and imprisonment of the plaintiff as charged in the declaration^ then the jury should find defendant guilty, and may assess plaintiff’s damages at such an amount as they believe, from the evidence and all the facts and circumstances proven in this cause, the plaintiff has sustained, not exceeding the sum claimed in the declaration.”
    Upon the -trial exceptions were taken to the ruling of the court in rejecting the testimony of the defendant’s wife, offered by him to disprove certain alleged payments upon the mortgage debt, which the plaintiff swore she had made to the wife; in respect to which the facts sufficiently appear in the opinion of the court.
    There was a jury trial, resulting in a verdict for the plaintiff for $500, for which sum the plaintiff had judgment, and the defendant brings the case here by appeal.
    Mr. Thomas Shibley, for appellant;
    that the -prosecutor must act with malice and without probable cause, and the action can not be maintained unless the proceedings complained of are terminated, cited Harpham v. Whitney, 77 Ill. 38-9; Walker v. Maton, 43 Ill. 64.

      Messrs. Ellis & Shell, for appellee;
    as to when a wife may testify, cited Trepp v. Baker, 78 Ill. 147; Hawver v. Hawver, 78 Ill. 415; Hayes v. Parmalee, 79 Ill. 563; Keep v. Griggs, 12 Bradwell, 512.
    As to malicious prosecution:
    Cooley on Torts, 185; Krug v. Ward, 77 Ill. 603; Splane v. Byrne, 9 Bradwell, 393; Leyenberger v. Paul, 12 Bradwell, 635.
   Wilsoh, J.

The first and second instructions given by the court at the plaintiff’s request, were defective in not embracing as a part of their hypothesis that the prosecution in which the plaintiff was arrested had terminated. But as such, fact was not controverted, and was shown by undisputed evidence, the jury were not misled by the omission, and no injury to appellant was occasioned thereby. In other respects, the instructions given for the plaintiff are unobjectionable.

It appears from the bill of exceptions that the plaintiff claimed on the trial, and offered evidence tending to show that she had paid the mortgage indebtedness in full, prior to her arrest on the charge of secreting the property, and among other payments she testified to having paid certain sums to appellant’s wife. To disprove these alleged payments to the wife, appellant offered the latter as a witness. The learned judge'being of opinion that she was not a competent witness for her husband, rejected her testimony, and the defendant excepted.

The position taken by the counsel for appellee is that the statute allowing the wife to testily as a witness for or against her husband in matters of business, where the transaction was had or conducted by her as the agent of her husband, applies only to cases where the cause of action grows out of a transaction conducted by the wife; and that the present action does not grow out of any transaction had or conducted by the wife, as her husband’s agent, but arises out of the husband’s tort in wrongfully causing appellee’s arrest. We do not think the statute is to be so limited. Its language is general and comprehensive, in all matters of business transactions, where the transaction was had and conducted by such married woman as the agent of her husband.” It places a married woman, when transacting business as agent for her husband on the same footing, as respects her competency to testify as to the particular transaction, as if she were a feme sole. Suppose the entire business in making the loan, taking the mortgage and receiving such payments as were made, had been transacted by appellant’s wife, as his agent, could it be justly claimed that because the transaction is drawn in question, in a collateral proceeding in which it becomes material to prove the facts, the wife may not be called as a witness? "We think not. Such a construction would be in violation of the plain language of the statute.

If a transaction consists of several parts, and the wife acts as agent only in respect to some particular part, she can be called only to such parts.

It is true, in the present case there is no direct proof that appellant’s wife was acting as the agent of her husband. But appellee can not be heard to say that she was not so acting.

Appellee is claiming the benefit of a payment she testifies she made to the wife, to apply on the mortgage debt. ■ There being no proof of the actual receipt of the money by the plaintiff, it results that if the payments made to the wife were not payments to her, as the agent of her husband, they were not payments upon the mortgage debt, and appellee can, therefore, take nothing by them. But appellee assumed to treat the wife as the agent of her husband, to receive the alleged payments. And if, acting upon this assumption, the court properly admitted proof of such payments, the wife was a competent witness to disprove them.

So far as the payment of the money to, and its receipt by, the wife of appellant was concerned, it was a transaction in a matter of business, in which the wife was acting as the agent of her husband, in respect to which particular transaction she was a competent witness. The case falls directly within the principle stated by Mr. Justice Sheldon in Robertson v. Brost, 83 Ill. 116. There the plaintiff’s wife had been sent by her husband to the defendant to get the money claimed to be due to the husband on an alleged sale of coal, made by him to the defendant, which sale the defendant disputed. It was held that as the agency of the wife was merely to go for the money, she was not a competent witness to testify to admissions made by the defendant, tending to show a sale of the coal. But the court said: “ Had the wife, as the agent of her husband, made the sale of the coal, then under the statute she would have been competent to testify to the transaction. But she was not. Brost himself made the sale, with which she had no connection. * * * Had it been material to the issue, which it was not, to prove the facts of demand of payment and refusal of payment, then the wife might have been an admissible witness to prove these facts as matters of a business transaction, where the transaction was had and conducted by a married woman, as the agent of her husband.”

In the case of Keep v. Griggs, 12 Bradwell, 512, cited by appellee, the wife was held to be an incompetent witness, but the decision was placed upon the express ground that in the transaction there called in question, the wife was acting in her own right, and not as the agent of her husband.

Being of opinion that the court below erred in rejecting the testimony of appellant’s wife, the judgment is reversed, and the cause remanded for a new trial.

Beversed and remanded.


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    Henry C. Morey et al. v. Georgiana Pierce.
    1. Lease — Teaudulent bepbesentations as to sewek gas. — If fraudulent representations are made to a tenant before the execution of a lease that the premises are free from sewer gas, and he moves in and finds the premises so infected with sewer gas as to be injurious to health, it is the duty of the tenant, if he wishes to disaffirm the contract, to do so immediately and leave the premises.
    2. Time eob making election — Damages.—The time for the tenant to make his election is upon the discovery of the fraud. If the plaintiff by his acts affirms the lease and makes it good by election, he is not thereby debarred of his action to recover such damages as were the natural and proximate result of the fraud, if the fraud shall be proved.

      3. Measure op damages. — But whether the tenant affirms or disaffirms the lease upon discovering the. fraud would be material in. determining the proper rule of damages. If the lease was absolutely void, a plaintiff would be entitled to recover back for all he had paid or done under it, while if he affirmed it or made it good by election, he would not necessarily be entitled to recover hack the rent he had paid, or for what he had done under the lease, because it had been paid, and done in performance of a valid covenant, and he might have derived some benefit from the lease and use of the premises.
    4. Evidence — Aepirmance.—The fact of affirmance might be an important element as regards the question whether the plaintiff used the diligence to prevent the accumulation of damages, which the law requires in such cases.
    5. Instruction. — An instruction, which assumed the fact of fraud and misrepresentation by defendants, when the evidence, as to that fact, was conflicting, is erroneous.
    Appeal from tlie Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 21, 1883.
    „ The appellee, Pierce, brought this suit against appellants, Morey & Snow, for alleged fraudulent misrepresentations as to the sanitary condition of house No. 474 Randolph street, Chicago, by means of which she was induced to sign and seal a lease for said house as lessee, May 19, 1882, tor one year from that date, at the yearly rent of $684 to be paid in installments as follows: $60 at the execution of the lease for one month’s rent in advance to June 19, 1882, on this latter day $24 for rent to July 1, 1882, then commencing at that date, $60 on the first day of each month during the term.
    The lessor in the lease was James Gibson, and it was signed and sealed on his behalf by the defendants below, Morey & Snow, as his agents. On the trial the plaintiff gave evidence tending to show that she negotiated for the lease with Snow in the absence of Morey; that she inquired of him whether there was anysewergas or anything wrong with the house;that he replied, u No, there is nothing wrong except some slight outside repairs;” that upon such assurance she signed the lease, paid the first month’s rent and moved into the house, May 22, 1882, for the purpose of keeping therein a boarding house, of which purpose Snow was apprised before he made such representation. Evidence was given tending to show that during the terra of the tenant of the said house the previous year, sewer gas and other had odors, etc., had been prevalent in the house, and that Snow knew it; but that the house had undergone investigation and repairs between that time and the leasing to plaintiff for the purpose of removing such nuisances, and that Snow was aware of such facts and had reason to believe that the object had been accomplished.
    The evidence tended to show that in less than two weeks after plaintiff took possession she discovered that the house was seriously affected with sewer gas (and that she had had previous experience with it in another house) ; that she soon thereafter made complaint about it to the defendants; that it not only continued at frequent intervals, but became more and more offensive; that after this discovery she not only remained in occupation of the house, but June 19,1882, paid to defendants $84, being the amount of rent in full to July 1, 1882; that although subsequently, her health, that of her hired girl and some of her boarders became impaired and seriously affected in consequence of the presence, as she claimed, of sewer gas in the house, and many of her boarders left her for that reason, she nevertheless continued in the occupation of the house.
    The evidence tends to show that she held on to the possession of the premises for a long period after she discovered the alleged fraud. Evidence was given tending to show that Morey & Snow were partners in the real estate business and renting houses as agents for owners. The said lease was given in evidence and the court at the instance of the plaintiff’s counsel gave this instruction to the jury:
    “The court instructs the jury that this action is not brought upon the contract or lease introduced in evidence in this case but upon the alleged fraud and misrepresentations set forth in the declaration and for the alleged loss and damage resulting therefrom to the plaintiff, and the jury are instructed that the covenants contained in said lease would not be binding qn the plaintiff in this case, if the jury shall believe from the evidence and under the instructions of the court, that the plaintiff was induced to sign said lease by the fraud and misrepresentations of the defendants as charged in the declaration.”
    The defendants duly excepted to the giving such instruction, and judgment having passed against them for $1,100 damages they bring the record to this court for revision.
    Messrs. Abbott, Oliver & Showalter, for appellants;
    as to proof of damages, cited 1 Sedgwick on Damages, 7th ed., 606, Vol. II, 657; Arnold v. Clark, 45 N. Y. 253; Drew v. Beall, 62 Ill. 165; Flynn v. Hatton, 43 Howard’s P. R. 333; Walker v. Swayzee, 3 Abbott’s P. R. 136; C. & A. R. R. Co. v. Rice, 71 Ill. 567.
    If engagements to repair were made and broken, the' remedy is by an action ex contractu: Arnold v. Clark, 45 N. Y. 253.
    Messrs. Monroe & Leddy, for appellee.
   McAllister, P. J.

The direction by the court to the jury, that the covenants in the lease given in evidence were not binding on the plaintiff, if the jury should believe from the evidence that the plaintiff was induced to sign said lease by the fraud and misrepresentations of the defendants, as charged in the declaration, was equivalent to telling the jury that such lease was void as to her, if she were so induced to sign it, irrespective of subsequent circumstances. We think the instruction was wrong and misleading.

The fraud set out in the declaration did not amount to fraud in the execution of the instrument, but merely to a fraudulent misrepresentation as to a collateral matter. Though collateral it was material, and if established would have justified her, upon discovering it, to have disaffirmed the contract, surrendered the premises to the lessor, and then, if this was done with the promptitude required by law, the contract would, as to her, have become void. But if, on the other hand, she, after the discovery of thefrand, omitted to disaffirm, and continued in the occupation of the premises, the law will regard her as having made the lease good and binding upon her by electron. There was evidence in the case tending to show that the plaintiff held the possession of the premises after she had discovered the fraud. In Allaire v. Whitney, 1 Hill. (N. Y.) 484, which was a case of alleged fraudulent misrepresentation by a lessor, the court says: “It is not necessary to deny that where a vendee or lessee takes or holds possession after he has discovered the fraud of the vendor or lessor, he shall not be allowed to rescind the contract; in other words, to say, as he always may do in the first instance, that the whole is void.” The same doctrine is re-affirmed in the same case by the title of Whitney v. Allaire, 4 Denio, 554.

The position of a lessee in this respect is precisely the same as that of a vendee of real or personal property. The general rule is well stated in Mason v. Bovet, 1 Denio, 69. The court, by Beardsley, J., says: “A person who is induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what he has advanced upon it. Brand destroys the contract db initio, and the fraudulent purchaser has no title (Chit. on Cont. 406, 678 to 681, Am. ed. of 1842). But if the party defrauded would disaffirm the contract he “must do so at the earliest practicable moment after discovery of the cheat. That is the time to make his election, and it must be done promptly and unreservedly. He must not hesitate; nor can he be allowed to deal with the subject-matter of the contract and afterward rescind it.” To the same effect is Hall v. Fullerton, 69 Ill. 448.

The case of Allaire w. Whitney, supra, is authority for the position that even if the plaintiff, by her acts, is to be held to have affirmed the lease and made it good by election, she is not thereby debarred of her action to recover such damages as were the natural and proximate result of the fraud if the fraud shall be proved. But whether she affirmed or dis-affirmed the lease upon discovering the fraud would be very material in determining the proper rule of damages. If the lease was absolutely void, as the court told the jury it would be if she was induced to sign it by the fraud and misrepresentations charged, then it would follow as settled law that she would be entitled to recover back for all she had paid or done under it; while on the other hand, if she had affirmed it or made it good by election, then she would not necessarily be entitled to recover back the rent she had paid, or for what she had done under it, because it had been paid and done in performance of a valid covenant; and she may have derived some benefit from the lease and use of the premises.

Besides, snch fact of affirmance might be an important element as regards the question whether she used the diligence to prevent the accumulation of damages, which the law in such cases requires. The last clause of the instruction assumes the fact.of fraud and misrepresentation by defendants when the evidence was conflicting as to that fact.

For the giving that instruction, we must reverse the judgment and remand the cause for a new trial.

Reversed and remanded.