text:
    Edward L. Brewster et al. v. D. P. Van Liew.
    Contract—Stock brokers—Instructions.—Where one party to a contract refuses to proceed with and complete it, the other party, being without fault, may sue for and recover back any money paid upon the contract. The instructions given in this case upon the two theories as to the sale of stock wer_ correct.

      Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed June 23, 1886.
    This was an action brought by appellee, to recover from appellants money paid to them on a certain transaction in Denver and Bio Grande stock. Appellee claimed that the arrangement was that appellants, who were stock brokers, agreed to purchase for him on January 10, 1884, one hundred shares of the stock at twenty-four; that on his return to his home in Aurora, he would send them one thousand dollars on the purchase, and the balance of the price, that is, fourteen hundred dollars, they would carry for him, at the rate of six per cent., until he should pay for' the stock or order it sold. He sent the thousand dollars to them, and afterward, at their request, paid them five hundred more on the stock, and at another time of his own volition, but as they claim, on their request, he paid them four hundred dollars more, making in all nineteen hundred dollars paid by him. On June 23, 1884, without knowledge or consent on his part, theyr sold the stock for six and three eighths, and appellee shortly after demanded that they deliver the stock to him or refund to him the money paid. They refused and he brought this action.
    Appellants claimed = that they acted as brokers for appellee in the purchase of the stock, without any special agreement to carry it for him; that they purchased the stock for him, as directed, and gave him a notice of the purchase as follows: “We have this day bought for your account and risk, 100 shares of Denver at twenty-four. This account received by telegraph; names of parties from whom above purchase was made will be given if desired as soon as received by mail;” that they required a margin of ten per cent, on the par value of the stock, and that appellee sent them such margin amounting to one thousand dollars, on his return to his home; that on Jan. 19th, they called for additional margin of five hundred dollars, the stock having gone down, which appellee paid; that on May 6th, there being a still further decline, they asked for and received the further sum of four hundred dollars; that the market still going down, appellants wrote appellee for five hundred dollars additional, and receiving no reply, telegraphed him on the twenty-third, and still not hearing telegraphed again as follows: “We have put a stop-order on your hundred Denver at six and one half. It will be sold on the market when it reaches there unless you remit us before it is sold.” Mo response was received and the stock was sold, and after charging appellee with price paid for stock, commission and interest, which it is customary to charge on advances, and crediting his payments, the balance in his favor was $88.91, which balance they were ready to pay.
    The jury found a verdict for plaintiff for the whole amount paid by him and interest, on which the court rendered judgment, and the record is brought here by appeal.
    Mr. Frederic Hllmann, for appellants.
    Messrs. Hopkins, Aldrich & Thatcher and Mr. A. J. Hopkins, for appellee.
   Moran, J.

There was a conflict of evidence as to what was the contract between the parties to this action. It can not be said that the evidence so preponderates in favor of the contention of the plaintiff or of the defendant that a verdict in favor of either would be set aside if the jury was correctly instructed as to the law. At the plaintiff’s request, the court gave the jury the following instruction :

“If the jury believe from the evidence that the defendants made a contract or agreement with the plaintiff, by which they were to purchase for him 100 shares of Denver and Bio Grande railroad common stock, for the sum of $2,400, on the condition that he should on the day following said purchase, pay to them the sum of one thousand dollars, and that they would carry the balance of said $2,400 for the plaintiff on his paying them six per cent, annual interest on such unpaid balance, and would hold said stock for his (plaintiff’s) convenience; and that in pursuance of said agreement, defendants did, in fact, purchase 100 shares of said stock for said sum of $2,400, and the plaintiff did, in fact, on the day following said purchase, pay the defendants the sum of one thousand dollars, and did subsequently thereto pay, by two different payments, the sum of $900 more, making in all $1,900 on said $2,400; and that at the time of the last payment said defendants agreed with plaintiff to hold said stock for him, on the condition above stated, on his paying six per cent, interest on all unpaid balances annually to suit plaintiff’s convenience, even if said stock went to zero; and that, without any notice to, or authority, knowledge or consent of plaintiff, defendants sold said plaintiff’s stock; and on his tendering to them the balance of said $2,400, together with interest on such balances, if the proof shows such tender was made, at the rate of six per cent, per annum, declined and refused to deliver to him said stock; and if you further believe from the evidence, that plaintiff did tender such balance, with interest, on said stock as aforesaid, and defendants declined to receive said tender, and declined to deliver to plaintiff said stock, and that thereupon the plaintiff demanded from defendants the money he had advanced them, and that defendants failed and refused to pay it, then, on that state of facts, plaintiff is entitled to recover all moneys advanced by him on said purchase of defendants, together with.legal interest thereon, and you should so find by your verdict.”

This instruction, in our view, correctly states the law and the rule of damages on plaintiff’s theory of the case. If the jury should find the facts as in the instruction supposed, then the rule announced in Larrabee v. Badger, 45 Ill. 440, controls the case. That case announces no new doctrine. It has always been held, that where one party to a contract refuses to proceed with and complete it, the other party, being without fault, may sue for and recover back any money paid upon the contract.

On the defendants’ theory, the court instructed the jury as follows:

“If the jury believe from the evidence that the plaintiff employed the defendants as his brokers, to purchase for him one hundred shares of the capital stock of the Denver and Bio Grande railroad stock, on the New York Stock Exchange, at its current market price, and paid them §1,000 for the purpose of securing them against loss thereon by the fluctuations in the market value thereof, and was to pay from time to time margins thereon, so as to save said defendants harmless and from loss, as might be required by defendants; and that, by reason of the fluctuations in the market, the margins became and were insufficient to secure said defendants, and they gave plaintiff notice thereof, and required additional margins by letter addressed to him at his place of residence, and mailed in time in the usual course of business, and plaintiff failed to respond and pay such additional margins, and defendants, to save themselves harmless, had to sell, and did in fact sell, said stock at and for the market price at the time, then the plaintiff has a right to recover in this case only such sums as may have remained to plaintiff’s credit after deducting from the proceeds of sale whr.t was due to defendants to repay them for the disbursements, or to save themselves harmless in the transaction.”

This instruction was a correct statement of the law as applicable to the facts as appellants claimed them to be, and we do not understand appellants’ counsel as questioning its correctness on the facts, assumed in it. Complaint is made that it was given in lieu of instructions asked by appellants, which were refused. We think the instructions were correctly refused. If no special contract was proved by appellee, or if the effect of the contract was as appellants contended, the refused instructions would state a correct rule of damages, but the jury found the special contract set up by appellee, and as we have before seen, the rule of damages, on that theory, was correctly given to the jury. The court had full power to permit the entry of remittitur of excess of interest from verdict before judgment.

No error of law appearing in the record, the verdict, under the evidence, settles the rights of the parties, and the judgment was correct and must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    Simon Reid et al. v. George R. Houston, use, etc..
    Damages—Illogical verdict.—Where there was no dispute as to the amount of the fund in question ($531.69), and the jury, having found for the plaintiff, should have rendered a verdict for the entire sum, but gave one for $375, the plaintiff only can complain of such verdict. A defendant can not be heard to assign as error that the amount of damages assessed against him is too small.
    Appeal from Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed June 23, 1886.
    Appellants are a wholesale grocery firm. In April, 1884, it was ascertained that a customer of the firm, who owed about fifteen hundred dollars, was embarrassed and was about to have a judgment entered against him, under- which it was feared his whole stock would be sold out and appellants would get nothing of what was due them. One Eckley, the credit manager for appellants, acted for them in making an arrangement to secure the amount of their claim, and, it is claimed by appellee, that the arrangement was that Houston should buy the stock of the customer, giving his note therefor; that appellants would take his note as payment from the customer of his, the customer’s, debt to them; that Houston would go on and conduct the business or close it out if he saw fit, and on paying his note to appellants, whatever there was left of the proceeds over and above the amount of said note, he was to have for himself. He closed out the business and after paying his note and all expenses attending the transaction, there was, on his theory, a balance of 8531.69 coming to him. This was a proceeding against appellants as garnishees to recover such balance, and they answered admitting that such balance appeared on their books to the credit of appellee, but alleging that, in fact, the money belonged to them; that Houston was their employe and that in the transaction of purchasing the stock and selling it out he acted as their trustee, and that the account was kept in his name on the books as a matter of convenience. The main dispute was on the question whether Houston bought the stock on his own account or as trustee for appellants, and on this point there was much contention; but as to the amount of the fund, if it in fact belonged to Houston, there was no dispute. It was agreed on all hands that the amount was §531.69. The jury returned a verdict for Houston for §375. There was judgment on the verdict, and the ease comes here by appeal.
    Messrs. Frank J. Smith & Helmer, for appellants.
    Messrs. Gardner, McFadon & Gardner, for appellee.
   Moran, J.

It is contended by appellants’ counsel that theinstruetions given by the court contain error in that two of them do not require the jury to find the facts from the evidence, bxit say simply, “If the jury shall find,” etc., without confining them by the words “ from the evidence.” The instructions in which the omission complained of occur, are so connected as propositions with instructions in which the jury are directed to find from the evidence, that we do not think it possible that the j ury were in any manner misled in that regard. When all the plaintiff’s instructions are considered together and in connection with the one given by the court of his own motion, in which the jury are told that as to what the facts are, and what the verdict should be, they must determine for themselves, from the evidence and from that only, they are not obnoxious to the objection urged against them. The minds of the jury were directed to the evidence, and that only, as the ground of their verdict.

It is strenuously urged against the verdict, that it is logically absurd and inconsequential; that if the jury found for the plaintiff, they should, as a matter of course, have fixed his damages at the whole amount of the balance in appellants’ hands. It is undoubtedly true that having found for the plaintiff, there being no dispute as to the amount of the fund, the jury should have given him the entire sum. But the error is against the plaintiff and he is not here complaining of the verdict. The verdict might indeed he set aside on his motion, but a defendant can not be heard to assign as error, that the amount of damages assessed against him is too small. Lury v. Bundy, 9 N. H. 298; Wolf v. The Goodhue Ins. Co., 43 Barb. 400.

The cases cited by appellants’ counsel where verdicts were set aside because not as large as required by the proof, are cases where the party against whom the error was made was complaining. Keagy v. Hite, 12 Ill. 99; Tilley v. Spalding, 44 Ill. 80; Cody v. Commercial Ins. Co., 13 Bradwell, 110.

There is no error appearing on this record, which authorizes a reversal, and the judgment must therefore be affirmed.

Judgment affirmed.


author: Bailey, P. J.

text:
    John F. Wollensak v. Orlando P. Briggs.
    1. Specific performance—Personal services.—Courts of chancery will not entertain bills to compel the specific performance of contracts for personal services. Especially is this true where the services stipulated for require the exercise of mechanical skill, intellectual ability and the exercise of judgment.
    2. Contract must be certain and definite.—A bill for specific performance will not be maintained unless the contract sought to be enforced is certain and definite in its terms and in all its parts.
    3. Same.—A bill to compel the specific performance, by the defendant, of certain contracts between him and complainant. By these contracts defen il ant undertook to produce and construct by his labor, skill and inventive genius certain improved machinery. No details or specifications were given in the contracts as to the form, material, structure, principle or mode of operation of the proposed machine. All of these matters were left wholly to the judgment and discretion of the defendant. Applying the above mentioned principles to the facts of this case, held that the bill can not, be maintained. The argument that a portion of the relief sought, viz., tha" the defendant be required to show and exhibit to the complainant the plans and drawings of said machines heretofore prepared by him, and to make disclosure and discovery to complainant of the principles and structure of the machines already built, is not in the nature of decreeing a specific performance of the contracts, and therefore does not come within said principles, is not tenable.
    Appeal from the Circuit Court of Cook county ; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed June 23, 1886.
    In this case Wollensak filed his bill in chancery against Briggs, alleging the execution by Briggs of two contracts in writing, by which he agreed to construct for the complainant two certain machines, one for making speaking tubes, and the other for making speaking tube elbows, which machines were to embrace and embody various new and useful improvements and inventions made, and to be made, by the defendant, and to assign such improvements and inventions to the complainant, tlxe same to be secured by letters patent, if so desired, the complainant agreeing to pay the defendant for the first of said machines the sum of §800 when it should be completed and approved by him, and for the other machine the sum of 8600, payable partly in installments while the machines were being built, and the residue when the complaixxant had finally accepted the machine and was entirely satisfied with it. The contract in relation to the first machine was subsequently modified by increasing the consideration to be paid therefor to §900, and limiting the complainant to the right to use the machine for making speaking tubes, reserving to the defendant the l-ight to use it for making stove pipe and other articles.
    The bill further alleges that the defendant partially built one of the machines for making speaking tubes, bringing it almost to a point of completion, which he tried and experimented with and pronounced a failux-e; that the defendant then or about that time showed and explained to the complainant new drawings, which he said he had prepared, and according to which he then proposed to build another machine in place of the one first built and tried, and that the complainant was so impressed therewith and so desirous of procuring and having said machine, that he thereupon and as a further consideration therefor, agreed to pay the defendant said additional §100; that the defendant afterward began work on another machine, which was built in accordance with said new drawings, and after bringing it almost to a point of full completion, invited the complainant to see the same operated, it being then substantially finished so as to make one size of speaking tube, and was in fact almost entirely finished in every respect except as to the gearing attachments and a few small features or details of construction; that the defendant also began to work on a machine for making speaking tube elbows, and substantially completed the same, but never delivered it to the complainant or put it to actual use so far as the complainant knows.
    That after building said machines as above stated, the defendant informed the complainant that he had been put to greater expense than originally contemplated or expected, and therefore suggested and insisted that the complainant should pay him a larger sum for said machines than specified in said agreements; that in view of the facts, and because of his anxiety to get said machines, the complainant then expressed a willingness to pay the defendant a larger sum therefor than he was under obligation to pay, and that the complainant has in fact paid the defendant at various times, on account of said •machinés, in all the sum of §1,200 ; that after the complainant had expressed his willingness to pay the defendant a greatly increased price for said machines, and had paid him §1,200 on account thereof, the defendant declined and refused to deliver said machines or either of them to the complainant, or to execute and deliver to the complainant any assignment or license in reference to said inventions or improvements, but, as the complainant believes, delivered both of said machines to other parties, and promised and agreed to assign to them or did actually attempt to transfer and assign to them the interest in said inventions and improvements, which he had previously agreed to transfer to the complainant, and that he refuses to deliver said machines or to assign or transfer said inventions and improvements to the complainant, and that combining and confederating with others, he is now seeking to cheat and defraud the complainant out of his money paid, for said machines and for said rights and privileges, said conduct on the part of the defendant being calculated and intended to work great and irreparable loss and injury to the complainant.
    That the defendant, at the instance and for the benefit of other parties to whom he has attempted to sell and assign said inventions and improvements, has made or intends to make application for letters p?atent therefor, but that applications for patents pending in the patent office being secret,- the com-, plainant has no means of knowing or ascertaining the! actual facts in relation thereto, and that all the facts in this respect being peculiarly within the knowledge of the defendant, it is necessary for the complainant to have a discovery and disclosure from him, as to whether he has filed such application and the status thereof, and what proceedings have been taken thereon; that such machines are of such peculiar kind and construction, that the complainant can not build the same or have them built by others, and that their construction and operation involve the use of said inventions and improvements, which, so far as the conplainant knows, have never been described or explained to others so as to enable them to manufacture or use the same ; that the defendant has never delivered to the complainant any specifications or drawings of said machines or otherwise explained their construction and operation so as to enable the complainant to utilize and enjoy the exclusive rights and privileges agreed to be assigned to him, and which if capable of being used as intended and represented, would be of great value to him in his business; that in order to enable the complainant to have similar machines built or in any way to use or utilize said inventions and improvements, it is necessary for him to have drawings, specifications or explanations thereof, and for this purpose to have a further discovery and disclosure from said defendant, showing the exact construction and manner of operation of said machines, and such other facts as may be necessary to enable the complainant to have them built and pat in operation in the complainant’s business.

      That the defendant, while engaged in building said machines for the complainant, at various times exhibited to the complainant, drawings of said machines in accordance with which defendant was building the same, and which the complainant understood when the same were before him; that the complainant approved and was satisfied with the machines which were described and shown in such drawings, and which the defendant was building, and repeatedly told the defendant so; that at the time the defendant exhibited the second machine to the complainant practically completed, except some gearing and other slight details of construction, the complainant informed the defendant that he was satisfied with such machine and approved and was ready to accept and pay for the same, and at vaz-ious times the complainant has so expressed himself to the defendant; that the complainant is able to build said machines if he can have the drawings of the same which were exhibited to him from time to time by the defendant before him for examination and inspection, or copies of the same, and is ready and willing and offers to build.said machines himself, if the defendant will permit him to inspect and examine said drawings; that he has so expressed himself to the defendant at various times, and has requested him to permit an examination and inspection of such dz’a wings, but the defendant has always refused to permit such inspection or examination on the part of the complainant or others for him, and now refuses to accord the complainant such privilege ; that the defendant is wholly irresponsible and-insolvent, and that a judgment at law against him would be unavailable and uncollectible, and would afford the coznplainant no adequate remedy in the premises, and that the complainant is wholly without remedy except in equity.
    The bill prays that the defendant may be decreed to carzy out and specifically perforin all and singular said agreements on his part; that he be required to build and deliver to the complainant machines of the kind and for the purpose aforesaid, and containing the inventions and improveznents aforesaid according to the letter and spirit of said agreeznents; that if he has not already made such application, he be required to make application for letters patent for said inventions and improvements, and to assign to the complainant the rights and privileges therein to which he is entitled under said agreements ; that if unable to build and deliver said machines, he may be required to make and deliver to the complainant full and complete drawings, specifications and explanations thereof, so as to enable the complainant to build the same or have the same built elsewhere; that he may also be required to disclose and discover whether he has made any application for letters patent on said inventions or improvements, or either of them, and if so, the status thereof, and what proceedings have been had thereon; that he may be required to show and exhibit to the complainant or to mechanical experts or draftsmen, on behalf of the complainant, the drawings of the machines mentioned in said contracts, which he has already made and prepared, and on several occasions showed to the complainant while engaged in building said machines, and that he permit the complainant, or others for him, to examine such drawings and make copies of the same for the use of the complainant in building such machines himself; that he may be enjoined from assigning to any other person or persons the rights and privileges in said inventions and improvements agreed to be assigned to the complainant, and from incumbering the same or seeking to hinder and embarrass the complainant in the full and free use and enjoyment thereof ; and that he be decreed to pay to the complainant the damages by him sustained by reason of said failure to carry out and perform said agreements, and also a general prayer for relief.
    To the foregoing bill the defendant interposed a general and special demurrer, which the court below sustained, and a decree was thereupon entered dismissing the bill at the cost of the complainant for want of equity. From this decree the complainant has appealed to this court.
    Messrs. Banning & Banning, for appellant;
    that where a plaintiff claims property he is entitled to discovery of what the property is which is sought to be recovered, cited Bray on Discovery, 21; Maden v. Veevers, 7 Beav. 489 ; Davis v. Dysart, 20 Beav. 405 ; Copinger on Title Deeds, 54; Kerr on Discovery, 277; Lambert v. Rogers, 2 Mer. 490 ; Thorpe v. Holdsworth, 7 L. R. Eq. 147; Vidi v. Smitn, 3 El. & Bl. 969 ; Morgan v. Seward, 1 Webst. Pat. Cas. 169.
    Mr. Jesse Cox, for appellee;
    as to specific performance cited Rutland Marble Co. v. Ripley, 10 Wall. 339 ; Richmond v. D. & S. City R. R. Co., 33 Iowa, 486; Bickford v. Davis, 11 Fed. Rep. 549 ; Sutherland v. Parkins, 75 Ill. 338 ; Brace v. Wehnert, 25 Beav. 348 ; Baldwin v. Society, 9 Simons, 393; Clark v. Price, 2 Wilson Ch. R. 157; Kimberley v. Jennings, 6 Simons, 340; Kemble v. Kean, 6 Simons, 334: Hamblin v. Dinneford, 2 Edwards’ Ch. Rep. 52S ; Allegheny Base Ball Club v. Bennett, 14 Fed. Rep. 257; Stocker v. Wedderburn, 3 Kay & Johns. 393; Gervais v. Edwards, 2 Drury & Warren, 80.
   Bailey, P. J.

It is manifest that the bill in this case, in its entire scope and purpose, is a bill to compel the specific performance by the defendant of certain contracts between him and the complainant. By those contracts the defendant undertook to produce and construct, by his labor, skill and inventive genius, certain improved machinery for manufacturing speaking tubes. Said machines, as the bill alleges, were to embrace and embody various new and useful improvements and inventions made and to be made by the defendant. No details or specifications are given in the contracts as to the form, materia], structure, principle or mode of operation of the proposed machines, all of these- matters being left wholly to the judgment and discretion of the defendant. Indeed, it is difficult to see how it would have been possible to give any specifications and details of the machines, as some, and perhaps many of them, had as yet no existence in the minds of the contracting parties, but were to be invented and developed by the defendant by means of subsequent thought, study and experiment.

There are at least two insuperable reasons why these contracts can not be specifically enforced in equity. The first isj that courts of chancery will not entertain bills to compel the specific performance of contracts for personal services. Especially is this true where the services stipulated for require the exercise of mechanical skill, intellectual ability and the exercise of judgment. Although some cases may be found in the earlier reports holding a contrary doctrine, the rule as we have stated it, is now well settled. Among the various applications of the rule to be found in the reports, the following may be noticed. In Baldwin v. The Society for the Diffusion of Useful Knowledge, 9 Simons, 393, by agreement between the plaintiffs and defendant, the former, in consideration of certain payments to be made to them by the latter, were to have the exclusive right of engraving and publishing a series of maps and drawings to be furnished to them, from time to time, by the latter. The court refused to restrain the defendant from acting in violation of the agreement, as it could not compel the defendant to furnish the drawings, and therefore, could not decree a specific performance of the agreement. In Clark v. Price, 2 J. Wils. Ch. 157, the court refused to decree the specific performance of a contract, by which the defendant agreed to compose and write reports of cases argued and determined in the Court of Exchequer, to be ¡published by the plaintiff. In pronouncing the decision the Lord Chancellor said: “ The only means of enforcing the execution of this agreement, would be to make an order compelling Mr. Price to write reports for the plaintiff, which I have not the means of doing. If there be any remedy in this case, it is at law.” The same rule is applied to an agreement by a person to act at a theater. Kemble v. Kean, 6 Simons, 333; Lumley v. Wagner, 1 DeGex, Mc. & G. 604; Hamblin v. Dinneford, 2 Edwards’ Ch. 529. In the case.last cited the court says: “The difficulty is, how to compel specific performance. The court can not oblige the defendant to go to the theater and there perform particular characters. Imprisonment for contempt would be the consequence of his refusal, and this would defeat the performance sought to be enforced.” See also, Ford v. Germon, 6 Phila. 6.

In Stocker v. Wedderburn, 3 Kay & John. 393, the plaintiff, being the owner of certain letters patent, entered into a written agreement with other persons to form a joint stock company, for the purpose of working the patents, he agreeing on his part to sell the patents to the company on certain terms, and take all requisite measures for obtaining patents in foreign countries, and to give his whole services to the company for two years, and to do his best to improve the invention, and to impart such improvements to the company, and it was held that the plaintiff could not obtain specific performance of this agreement against his co-promoters, because, from the nature of his own part of the agreement, the court could not compel specific performance of it by him. See also Webb v. England, 29 Beavan, 44, where the rule above stated is held to apply to a contract to work as an apprentice, or to instruct asa master; and Booth v. Pollard, 4 Y. & C. 61, where it is applied to a contract to work quarries or coal mines.

Another rule applicable to the specific performance of contracts to which courts of equity have uniformly adhered is, that a bill for that purpose will not be maintained unless the contract-sought to be enforced is certain and definite in its terms and in all its parts. Shenandoah Valley R. R. Co. v. Lewis, 76 Va. 833; Schmeling v. Kriesel, 45 Wis. 325; Nichols v. Williams, 22 N. J. Eq. 63; Colson v. Thompson, 2 Wheat. 336 ; Los Angeles, etc., Association v. Phillips, 56 Cal. 539; Bowman v. Cunningham, 78 Ill. 48; 1 Story’s Eq. Juris. § 767; Fry on Specific Performance, § 317 et seq., and authorities cited.

The foregoing rule, especially in its application to a case like the present, is so well stated and discussed in Blanchard v. D. L. & L. M. R. R. Co., 31 Mich. 43, that we feel justified in quoting at length the following language from the opinion of the court: “ The jurisdiction of equity in specific performance proceeds on the supposition that the parties have not only agreed, as between themselves, upon every material matter, but that the matters so agreed on are of such a nature, and the subjects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legitimate implication, that the court can and may collect, and in their proper relations, all the essential elements, and proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed. If, however, it appears, either that the things to he performed are in their nature incapable of execution by the court, or that needful specifications are omitted, or that-material matters are left by the parties so obscure or undefined, or so in want of details, or that the subjects of the agreement are so conflicting or incongruous, that the court can not say whether or not the minds of the parties met upon all essential particulars, or if they did, they can not say cxact’y upon what substantial terms they agreed, or trace out any practical line where their minds met, the case is not one for specific performance. As the court does not make contracts for parties, so it never undertakes to supply material ingredients which they omit to mention, and which can not he legitimately considered as having been within their mutual contemplation. And where the party to perform is left by the agreement with an absolute discretion respecting material and substantial details, and these are therefore indeterminate and unincorporated until by his election they are developed, identified and fixed as constituents of the transaction, the court can not substitute its own discretion, and so by its own act perfect and round out the contract.”

If a court of equity should attempt to order a specific execution of the contract in this case, it is manifest that insurmountable obstacles would immediately present themselves. It would be impossible for the court to specify or describe in its decree the machines to be constructed, their form, material or structure, or if it attempted to lay its mandate upon the defendant to proceed with the invention and construction of the machine stipulated for, it could never know with certainty whether its order was obeyed. If it should attempt to take the execution of the contract into its own hands, it would be met with equal difficulties. Its officer charged with the performance of its decree would be powerless. The court would thus find itself unable either to compel the defendant to execute the contract, or to cause it to be executed through any of the agencies by means of which courts of chancery ordinarily enforce their decrees.

It is urged, however, by the counsel for the complainant, that a portion of the relief sought, viz., that the defendant be required to show and exhibit to the complainant the plans and •drawings of said machines heretofore prepared by him, and make disclosure and discovery to him of the principle and structure of the machines already built, is not in, the nature of decreeing a specific performance of the contracts, and therefore does not come within the principles above discussed. In this we think counsel are mistaken. This particular measure of relief, with which it is now suggested that they may be content, seems to us clearly to be nothing Jess than a partial execution of the contracts. The defendant’s under, taking was not merely to construct and deliver to the complainant certain machines, but .to .embody in such machines various improvements and inventions already made and yet to be made by him. Obviously the principal thing sought by the complainant and secured to him by the contracts was the defendant’s improveménts and inventions. The mere construction of the two machines after their invention had been achieved, was quite secondary and relatively of little importance. . These improvements and inventions were to be assigned and transferred to the complainant, and such transfer and assignment involved, as a necessary and principal element, a complete disclosure and discoyery to him of the principle and structure of the machines, so as to enable him to avail himself of said inventions and discoveries. Compelling the defendant to make the disclosure and discovery asked for, and to place in the complainant’s hands the plans and drawings of the machines, would be giving him all the substantial and really valuable benefits of the contracts, and would be for all substantial and valuable purposes a specific execution of the contracts.

We do not perceive that the case is at all changed by the fact averred in the bill that the complainant, on being shown the plans and drawings prepared by the defendant, approved and was satisfied with the machines which they purported to represent, and so informed the defendant. While, by the terms of the contracts, the complainant was not bound to pay the defendant the stipulated price until he approved, accepted and was satisfied with the machines, the question after all is, whether the machines built or partially built by the defendant, and of which he prepared plans and drawings, were really and in fact the machines contemplated by the contracts; for, if they -^ere not, the plaintiff’s approval imposed upon the defendant no obligation to deliver them to. him. So far as the bill shows, those machines, when completed, may have proved failures equally with the first one built, which did not seem to work. Unless they were capable of operating in the manner and of producing the results stipulated for, they can not be held to be the machines contemplated by the contracts, and the complainant had no right to claim them.

If, therefore, the court had undertaken to compel the defendant to make discovery of the principle and structure of the machines built, it would still have been uncertain whether the improvements and inventions thus disclosed were the ones contemplated by the contract. Under such circumstances a specific performance will never be awarded.

We are of the opinion that the demurrer to the bill was properly sustained, and the decree will therefore be affirmed.

Decree affirmed.


author: McAllister, J.

text:
    The Hide and Leather National Bank v. John West et al.
    1. Sale oh Board op Trade—Delivery op warehouse receipts— Bahkboha pide purchaser.—About noon on August 8, 1884, plaintiffs sold on the Board of Trade to D. & Co. (both parties being members of said board) 5,000 bushels of corn, at an agreed rate per bushel, for cash, the transaction to be closed before three o’clock of that afternoon. The sale was accordingly closed by D. & Co. making and delivering to plaintiffs their two checks drawn upon’ defendant bank (with which D. & Co. kept an account) and payable to plaintiffs’ order, and at the same time plaintiffs delivered to D. & Co. the two warehouse receipts for the corn. Near the close of banking hours, on the same day, D. & Co. took the receipts to defendant hank, and their account being overdrawn, they made a memorandum draft upon New York for $2,300, attached the warehouse receipts thereto as collateral, and delivered the whole to the bank and obtained credit for $2,300. Plaintiffs deposited the checks in their own bank, which was not defendant bank, and the next day, when the checks were sent through the clearing house, D. & Co. had failed, and the checks were never paid. Plaintiffs bring an action of trover against defendant bank to recover the value of such warehouse receipts. The court is of opinion that from the clear weight of the evidence the bank stood in the relation of a bona fide purchaser for a valuable consideration, and without notice of any of the matters between plaintiffs and D. & Co. affecting the title of the latter to the warehouse receipts, and without any circumstances sufficient to put the bank upon inquiry.
    2. As between vendor and vendee.—As between plaintiffs and D. & Co., since the sale was for cash and the delivery of the warehouse receipts was with the expectation that the checks were good and would be paid, upon its turning out that they would not be paid plaintiffs were at liberty to regard such delivery as conditional and at once to reclaim the property.
    3. Insolvent vendee—Fraud.—The mere fact that a vendee was insolvent the next day after the purchase and might have been at the time of the purchase, is not sufficient for the basis of a charge of fraud in the purchase.
    4. Instructions.—As there was no evidence, sufficient to go to the jury, that the bank or any of its officers or agents acted in bad faith in acquiring or holding the warehouse receipts, it was error to submit such question to the jury in the instruction given.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Cast, Judge, presiding.
    Opinion filed June 28, 1885.
    This was an action of trover brought by appellees, West, Andress & Co., commission merchants, against the appellant, Hide and Leather National Bank, both of Chicago, to recover for the alleged wrongful conversion of two warehouse receipts for corn of plaintiffs, issued by the Wabash elevator, one of which, bearing date Jan. 31,1884, was issued to Culver & Co. for 3,696 bushels, the other of date Feb. 5,1884, was issued to Ricord & Brother for 1,571 bushels. The plea was general issue.

      It appeared that August 8, 1884, West, Andress & Co., being members of the Chicago Board of Trade, as well as the firm of George B. Dickinson & Co., the former, about noon of that day, agreed on the board to sell to the latter five thousand bushels of corn for cash, the transaction to be closed before three o’clock p. m. of that day; that in closing said transaction, a short time before three o’clock, West, Andress & Co. delivered to said Dickinson & Co. the two warehouse receipts in question, and took, in payment of the corn, two checks of Dickinson & Co, payable to the order of West, Andress & Co., upon said Hide and Leather National Bank, one of which was for $1,636.85, and the other for $695.49. Although the checks were received by West, Andress & Co. before the close of banking hours of that day, they were not presented to the bank on Avhich they were drawn, but deposited by West, Andress & Co. in the bank where they did business, so that in going through the clearing house on the next day, August 9th, they Avere not paid and never have been since. It appeared that near the close of banking hours on the 8th of August, the said Dickinson & Co., who had been doing banking business with the said Hide and Leather Bank for a considerable period of time, and having on that day overdrawn their account there, brought in the said warehouse receipts as it was their custom to do, and transferred them to the bank as security for such overdraft. The transaction was effected by Dickinson & Co. droving a draft on Mclntire & Warded, New York, for twenty-three hundred dollars, payable to the order of the Hide and Leather Bank. This was called a memorandum draft, and was but a form adopted for effecting an assignment of the warehouse receipts, which were duly indorsed to the parties to.. whom given. The bank placed the amount to the credit of Dickinson & Co.
    There was no evidence tending to show that before or at the time of taking the assignment of said receipts, the bank or any of its. officers or agents had any notice of how or from Avhom Dickinson & Co., who were a business house in good credit, had obtained them. Hor did the evidence tend to show any circumstances sufficient to put them upon inquiry, as to the title of. Dickinson & Co., to said receipts.

      It appears that August 9, 1884, after said checks were thrown out at the clearing house, West, Andress & Co. demanded of the Hide and Leather Bank the receipts or the money, which request was denied.
    The court, among other instructions, given at the instance of the plaintiffs, gave the following:
    “If the jury believe from the evidence that the defendant is not an innocent holder of said warehouse receipts as explained in the foregoing instruction, or if the jury believe from the evidence that there was bad faith on the part of the defendant in acquiring and holding said receipts, then the defendant has no better right or title to said receipts as against the plaintiffs than said Dickinson & Co. had at the time Dickinson & Co. deposited said receipts with the defendant. The term bad faith, as used in this instruction, means actual knowledge on the part of the bank that Dickinson & Co. were not the owners of the receipts, or the corn represented by them, at the time they were delivered to the bank, or actual knowledge of some fraud by Dickinson & Co. upon the plaintiffs in getting possession of the receipts.”
    The jury found the defendant guilty, assessed plaintiffs, damages at two thousand and thirty-six dollars and seventy-eight cents, for which the court, overruling defendant’s motion for a new trial, gave judgment, and the defendant appealed to this court.
    Messrs. Wilson & Zook, for appellant;
    cited McCormick v. Hadden, 37 Ill. 370; Ketchum v. Watson, 24 Ill. 591; Butters v. Haughwout, 42 Ill. 18; Chicago Dock Co. v. Foster, 48 Ill. 507 ; Ohio & M. Ry. Co. v. Kerr, 49 Ill. 459 ; Holland v. Swain, 94 Ill. 154; Hall v. Hinks, 21 Md. 416; Rowley v. Bigelow, 12 Pick. 312.
    It is a presumption of law that a person is the owner of personal property in his possession: Bergen v. Riggs, 34 Ill. 170 ; Amick v. Young, 69 Ill. 542; 1 Greenleaf on Ev., § 34; Roberts v. Haskell, 20 Ill. 64.
    Messrs. Frank J. Smith & Helmer, for appellees;
    cited Canadian Bank v. McCrea, 106 Ill, 298.
   McAllister, J.

About noon of the 8th of August, 1884, the plaintiffs below, West, Andress & Co., sold on the Chicago Board of Trade to George B. Dickinson & Co. (both parties being members of said board) five thousand bushels of corn, at an agreed rate per bushel, for cash, the transaction to be closed up before three o’clock of the afternoon of that day. Dickinson & Go. then and for a long time previously, had been commission merchants in good credit, and customers of the Hide and Leather Hational Bank, the defendant below, and had an account therewith. Before three o’clock of that afternoon, said sale was closed up by Dickinson & Co. making and delivering to plaintiffs their two checks drawn upon said bank and payable to the order of said West, Andress & Co., one of which was for $1,636.85 and the other for $695-.49, said amounts together covering the price of the corn sold, and West, Andress & Co., at the same time, delivered to Dickinson & Co. the two warehouse receipts in question, as and for the corn so sold.

West, Andress & Co. did not present said checks for payment to said bank on that day, but instead, deposited them in their own bank, so that by the usage of business they would go through the clearing house on the next day, August 9, 1884. When sent to the clearinghouse Dickinson & Co. had failed, and they were neither of them paid. It appears, however, that near the close of banking hours, August 8th, the day of the sale, Dickinson & Co. brought said warehouse receipts to the Hide and Leather National Bank, and their account there being then overdrawn, they made an arrangement with the cashier to transfer them to the bank and obtain credit for the sum of twenty-three hundred dollars thereby. This wps effected by Dickinson & Co. drawing a draft on New York for that amount, to which the warehouse receipts were pinned and all delivered to the bank, the latter giving Dickinson & Co. credit for that amount, and the undisputed evidence is that the bank had paid out the whole amount on checks of Dickinson & Co., except about two hundred and twenty dollars, before any of its offiSers or agents had any notice of the transaction or any part of it between West, Andress & Co. and Dickinson & Co., in respect to the sale of said corn.

After the checks were thrown out at the clearing house-, which was after e’even o’clock, a. m., of August 9th, West, Andress & Co. went to the defendant bank and demanded the return of the receipts or the money on the checks, which, as it appears, is the first time the bank had any notice respecting the transaction between the parties to the sale of said corn. The bank refusing to comply, this aetion of trover was brought against the bank, resulting in a verdict and judgment against the latter, for the value of said corn.

As between the plaintiffs below and Dickinson & Co., the sale being for cash, and the delivery of the warehouse receipts being with the expectation that the cheeks were good and would be paid, upon its turning out that they were not good, we think West, Andress & Co. were at liberty to regard such delivery as conditional, and at once reclaim the property. Paul v. Reed, 52 N. Hamp. 136; Canadian Bank v. McCrea, 106 Ill. 298.

But we are also of the opinion that, under the circumstances of the case, if the bank stood in the relation of a bona fide purchaser, for a valuable consideration, without notice, then West, Andress & Co. had no right to reclaim the property in question, as against the bank. Seek M. C. R. R. Co. v. Phillips, 60 Ill. 190, where the questions involved in this branch of the ease are fully discussed and settled.

We have examined the evidence preserved by the bill of exceptions, and are of opinion that from the clear weight and preponderance of the evidence, the hank stood in the relation of a bona fide purchaser of the warehouse receipts in questioii for a valuable consideration, and without notice of any of the matters between plaintiffs and Dickinson & Co. affecting the title of the latter thereto, and without any circumstances sufficient to put the bank upon inquiry.

The case is totally barren of any evidence tending to show that Dickinson & Co. made any false representations to the plaintiffs or resorted to any trick or hrtifice at, the time of the purchase. B is true, the evidence shows that they were insolvent the next day, and might have been so at the time of the purchase. That mere fact, however, is not sufficient for the basis of a charge of fraud in the purchase. Cross v. Peters, 1 Greenl. 376; Chit. on Con., 10 Am. Ed., 430.

There was no evidence sufficient to go to the jury, that the bank, or any of its officers or agents, acted in bad faith in acquiring or holding said warehouse receipts. Yet, by the instruction given for the plaintiffs (and set out in our statement of the facts of this case), the court assumed that Dickinson & Co. were guilty of some fraud in obtaining possession of the receipts, and submitted to the jury the question of bad faith, as defined by the instructions in acquiring and holding them.

As the case stood upon the evidence, that instruction was well calculated to supplement what was wanting in the evidence, and to mislead the jury ; because it amounted to an assumption on the part of the court, by submitting such questions to the jury, that there was evidence tending to show that the bank had knowledge, at the time that it took a transfer of the warehouse receipts, that Dickinson & Co. were not the owners of the receipts or the corn represented by them, and had actual knowledge of some fraud by Dickinson & Co. upon the plaintiffs in getting possession of them, when in truth and in fact, there was no evidence tending to show any such knowledge on the part of the bank or any of its officers or agents ; but the evidence was the other way.

We think the verdict was unsupported by the evidence, and that said instruction was fatally erroneous. For which reasons the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Frank Riedle v. Susan Mulhausen.
    1. Instructions.—Where there is any evidence, however slight, to sustain a legal claim or a legal defense, the party introducing snch evidence has a right to have it submitted to the jury by appropriate instructions, and where an instruction is submitted, based upon evidence in the ease and stating correctly a principle of law applicable to such evidence and not covered by any instruction given, it is error to refuse the instruction, however meager the evidence to sustain the hypothesis contained in it.
    2. Executed and executory contracts op a fraudulent character.—There is a marked distinction between executory and executed contracts uf a fraudulent character. Whatever the parties to an action have executed for fraudulent or illegal purposes, the law refuses to lend its aid to disturb. Whatever the parties have fraudulently or illegally contracted to execute the law refuses to compel the contractor to execute or pay damages for not executing.
    8. Promissory note—Fraud.—A note given in consideration of a transfer of property made to defraud creditors, is not binding between the parties.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed June 29, 1886.
    This was an action in assumpsit to recover against plaintiff in error on five promissory notes made by him payable to defendant in error.
    Plaintiff in error filed several pleas, three of which of said pleas set up, in substanee, that said notes were made and delivered in pursuance of a fraudulent and unlawful agreement made between defendant and plaintiff on October 22, 1873, by which it was agreed that plaintiff should convey to the defendant, certain real estate in Cook county, for the pretended consideration of $9,000; that the conveyance of said premises was executed by plaintiff, and was accepted by defendant for the purpose of cheating, defrauding and delaying certain creditors of the plaintiff, one of whom had brought suit against her; that the notes and the trust deed securing them were given on March 9, 1874, in pursuance of the design to cheat and defraud her creditors; that in further pursuance of such fraudulent designs, another conveyance of said property was delivered to defendant, dated March 2, 1874, prior to the malting of the notes; that it was always understood between the parties that defendant’s notes would be canceled and given back to him, and that he should not be called upon to pay them; that there was no other consideration for the notes except said fraudulent conveyance, and the notes and the trust deed securing them were made to aid in the purpose of deceiving plaintiff’s creditors and inducing them to believe that a bona fide sale of the property had been made, while in fact, the sale was colorable only and made for the purpose of defrauding.
    Replications were filed to the pleas, setting up the fraud, denying that the notes were made on the consideration stated in the pleas, and alleging that the notes were given for an actual conveyance of the property, made bona fide, and not for the purpose of defrauding.
    Plaintiff in error testified that the property was first deeded to him Oct. 22, 1878, to avoid the lien of a judgment which it was apprehended would be obtained against defendant in error by one Zeigler; (hat he, at the time of the first conveyance, gave nothing for the property; that when the notes were given, another conveyance was made to him, and a mortgage was made on the property, for Mrs. Mulhausen’s benefit; that the Zeigler suit was still pending and was near trial, and the notes and trust deed securing them, were made to give the appearance that he, Riedle, had bought the property, but the real arrangement was that he should sell it as soon as he could, and give the proceeds to Mrs. Mulhausen ; that the intention was to keep the property in such a way that it could not be reached by Zeigler, and that jipon a sale being made, the notes were to be given up.
    Mrs. Mulhausen admitted that the first conveyance was made to Riedle, under his advice, for the purpose of avoiding the Zeigler judgment, but claimed that the last deed to Riedle, which was made by ail her children and herself, was a Iona fide sale of the property; that the notes were given for the purchase money, and that the trust deed was given on the property to secure them, and some of the notes were turned over to some of the children, by her, for their interest in the property sold; that the last sale and conveyance had no relation to and was not in consideration of the first deed, nor made for the purpose of delaying or hindering creditors.
    On the trial in the court below, while the defendant was testifying on the point of the fraudulent intent with which he claimed the transaction was infested, and after he had testified that Mrs. Mulhausen had admitted that these notes were given merely to make it appear as a Iona fide transaction, the judge made the following ruling in the presence of the jury: “ Take-all the evidence you are a mind to put in on this subject right-now, and I want to say that under the decisions of this State, it will not render a note between the parties void, nor the conveyance void. Therefore it struck me on investigation that this can be shortened at once because as between the parties the only person on earth who can attack the note is an existing creditor. That is the law, and we might as well understand it first as last. ”
    The court gave among other instructions for the plaintiff, the following:
    “Given: The court instructs the jury that under the laws of this State the notes offered in evidence in this suit are prima facie evidence of an honest indebtedness, owing from the defendant to the plaintiff at the time said notes are made and delivered, and unless the defendant has established by a preponderance of evidence that the notes were given without consideration, or that the consideration has failed in whole or in part, or that since they were made and delivered, the notes, or some part thereof, had been paid, then the plaintiff is entitled to recover in this case, the amount that may be due on said notes as shown by the evidence, both principal and interest up to this date;” and of his own motion instructed the jury as follows:
    “ The court instructs the jury that this is an action which is brought by the plaintiff against the defendant to recover upon five promissory notes made by defendant in favor of plaintiff. The defendant has interposed certain pleas by way of setting up a defense to the payment of the same, and has ássumed the burden of proving the same by a preponderance of the evidence, and it is the duty of the jury to pass upon the evidence in the case, and it is for the court to lav down the law to you, which shall govern you in coming to a conclusion upon the facts as you shall find them.
    Therefore the court instructs you that if you believe from the evidence in this case, that the plaintiff was the owner of certain real estate which is mentioned and described in the pleas in the case, and referred to by various witnesses in the case, and that while she was so the owner of said property she made a conveyance of said property to the defendant in this ease, and that at the time of said conveyance a suit was pending against the plaintiff in this case, which had been brought by one Zeigler against her, to recover damages against her -for some alleged trespass, and that soon after the said conveyance was made by the plaintiff to said defendant, the suit so pending against her was settled, then the jury are instructed that even if said conveyance was made to avoid any judgment which might have been obtained against her in that case, then as between the said parties, to wit, the plaintiff and defendant, the said conveyance would be perfectly valid, and if the jury further believe from the evidence that after said conveyance was so made to said defendant on or about the month of March, 1874, said defendant, Biedle, purchased the said property from plaintiff and obtained another deed of conveyance of said property, which deed of conveyance was signed and executed by the plaintiff and others, and that at said time the defendant made and executed said notes in question in thiscase as a part of the purchase money, and gave the trust deed introduced in evidence to the plaintiff to secure the payment of the same, then the court instructs you that if you so find the facts to be from the evidence, then there is good and valuable consideration for said notes, and the plaintiff would be entitled to recover on said notes whatever amount the evidence shows is due upon said notes, and the fact that the plaintiff had before that time made a conveyance to the defendant to avoid the consequences of a judgment which had been obtained against her, is not a bar to a recovery on the notes in question.” And the defendant asked the court to give to the jury the following instructions':
    “ 1. If the jury believe from the evidence that the conveyances to the defendant, in evidence were made for the purpose of hindering, delaying or defrauding the creditors of the said plaintiff or any of them, and that the notes sued on herein were executed and delivered by defendant to plaintiff in pursuance of such unlawful agreement, and upon no other consideration, then you are instructed that such unlawful purpose precludes any recovery by the plaintiff against the defendant upon any notes so given upon such unlawful and fraudulent consideration, and your verdict should be for the defendant.
    2. The jury are instructed that under the laws of Illinois every gift, grant, conveyance, assignment or transfer of or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered with the like intent, shall be void as against creditors or other persons.
    3. If the jury believe from the evidence adduced that the conveyance from the plaintiff to the defendant was for the purpose of hindering, delaying or defeating the creditors of the plaintiff in any attempt they might make to enforce their claims against the plaintiff, and that was the understanding and agreement between the plaintiff and defendant, and that the notes in suit were given in pursuance of this agreement between plaintiff and defendant, then the jury are instructed as a matter of law that the said agreement between the plaintiff and the de tendant was illegal and can not he enforced, and the jury must find for the defendant.”
    But the court refused to give said instructions, and to the giving of the instructions for the plaintiff and the instruction by the court, and the refusal to give those asked by the defendant, exception was duly taken.
    The jury found a verdict for the plaintiff for the amount of the notes held by the plaintiff and the interest thereon. Judgment was rendered upon the verdict, and the case is brought to this court by appeal, and the ruling of the court above set out and the giving and refusal of the instructions, is assigned as error.
    Mr. Allah C. Story, for plaintiff in error;
    as to distinction between executed and executory contracts cited Howell v. Edmunds, 47 Ill. 79; Fitzgerald v. Forristal, 49 Ill. 228; Ward v. Enders, 29 Ill. 519 ; Bump on Fraudulent Conveyances, 443; Chitty on Contracts, 729-731; Bailey v. Taber, 5 Mass. 296; Holman v. Johnson, 1 Cowp. 343; Parsons v. Thompson, 1 H. Bl. 322.
    Mr. Arthur Sohroeder, for appellee.
   Moran, J.

The defendant by his pleas set up that the notes sued on were given as part of a scheme to hinder, delay and defraud the creditors of the plaintiff, and the only consideration thereof was the conveyance of real estate to him by plaintiff in pursuance of such fraudulent purpose. By his own testimony the defendant furnished evidence competent to be considered by the jury in support of the allegations of the pleas.

By refusing defendant’s instructions and giving the one requested by plaintiff, and the one drawn by the court, defendant’s evidence in support of the issue made by him was practically withdrawn from the consideration of the jury. Where there is any evidence, however slight, to sustain a legal claim or a legal defense, the party introducing such evidence has a right to have it submitted to the jury, by appropriate instructions, and when an instruction is submitted based upon evidence in the case, and stating correctly a principle of law applicable to such evidence and not covered by any instruction given, it is error to refuse the instruction, however meager the evidence to sustain the hypothesis contained in it. Peoria Marine & Fire Ins. Co. v. Anapow, 45 Ill. 86; The City of Chiago v. Scholten, 75 Ill. 468; Wolleis v. King, 54 Ill. 343 ; County of Cook v. Harms, 108 Ill. 151; Missouri Furnace Co. v. Abend, 107 Ill. 44; Eames v. Rend et al., 105 Ill. 506; Trask v. People, 104 Ill. 569.

There is a marked and settled distinction between executory and executed contracts of a fraudulent character. This distinction the learned judge who tried this case in the court below seems to have overlooked in his rulings upon the evidence and his instructions to the jury. The deed made with a fraudulent intent is binding between the parties, but as is said in some of the cases, is good by accident, because the law will not aid a party to it to question it. The law by taking this negative stand, may be said to sustain the contract between the parties to it when executed.

“Whatever the parties to an action have executed for fraudulent or illegal purposes, the law refuses to lend its aid to disturb. Whatever the parties have fraudulently or illegally contracted to execute, the law refuses to compel the contractor to execute or pay damages for not executing ; but in both cases leaves the parties where it finds them. The object of the law in the latter case, is, as far as possible, to prevent the contemplated wrong, and in the former to punish the wrongdoer by leaving him to the consequences of his own folly or misconduct.” Smith v. Hubbs, 10 Me. 71.

In Miller v. Marckle, 21 Ill. 152, a bill was filed to foreclose a mortgage given for the purpose of delaying creditors. The court refused the foreclosure, saying to complainant: “Ton have the notes and mortgage; you were a willing party to the proposed fraud; we will give you no assistance to enforce the one or the other;” and the court cites with approval the case of Smith v. Hubbs, sufra, and the case of Nellis v. Clark, 20 Wend. 24, where suit was brought on a' promissory note, and the court held that it having been given for property, conveyed with intention to defraud creditors, that it could not be enforced against the maker in an action at law. See also Bump on Fraudulent Conveyances, 454; Dunaway v. Robertson, 95 Ill. 419 ; Hill v. Brant, 6 Bradwell, 366; Niver v. Best, 10 Barb. 369.

In the case last cited it was held that if the note was given subsequently to the fraudulent transfer, yet if it be made either in pursuance of the original fraudulent agreement or in furtherance of its object, it will still be void, and no recovery can be had upon it, even though a sum honestly due may form a part of the consideration. It is true that the parties might, notwithstanding the' first fraudulent conveyance, have made a valid second conveyance and given a valid promissory note in consideration thereof, but the fraudulent transaction must have formed no part of the consideration of this contract.

If the latter conveyance is made in good faith, neither the deed nor the consideration for it will be contaminated by the fraud in the first conveyance. Parke v. Tiffany, 52 Ill. 286; Singer v. Partridge, 107 Ill. 529; Matthews v. Buck, 43 Me. 265; King v. Cantrel, 4 Ind. 251.

Here Riedle’s claim was that the second conveyance was in furtherance of and for the same purpose which induced the first, and that the notes in suit were part of the transaction, and the court in the instruction given sua sponte, as well as in the instruction given at plaintiff’s request, ignored this claim and the evidence in support of it, and practically directed a verdict regardless of this defense. In ruling that the note was binding between the parties, even if given in consideration of a transfer of property made to defraud creditors, the court erred, and in refusing the instructions asked by defendant, and giving, at the request of plaintiff, the one set out in the statement of facts and the one drawn by the court, the court also erred.

It was entirely a question for the jury, under proper instructions as to the law, to determine whether defendant had sustained his allegations as to the consideration of the notes. He might fail to satisfy the jury of the truth of his assertions, but of his right to have the jury pass upon the question there can be no doubt.

The judgment will be reversed and the ease remanded.

Reversed and remanded.


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    Samuel Coffman v. William Young et al.
    1. Gambling contracts.—To bring a transaction within the provisions of section 130 of the criminal code, it is not essential that the contract should, on its face, purport to give to the party an option to sell or to buy; but if the real intention of the parties at the time of making the contract is to deal only in options to be subsequently adjusted or settled upon the basis of the differences in the market price and not by the delivery of the commodity sold, the transaction is a gambling contract within the prohibition of the statute, even though it may, upon its face, purport to be an absolute contract for the sale or purchase of such commodity for future delivery.
    2. Same—Principal and agent.—Where a broker, commission merchant or other agent undertakes to deal for bis principal in contravention of the statute above mentioned, and in doing so makes disbursements or paya losses growing out of such dealings, he can not recover from bis principal the money so paid on his commission.
    3. Instructions—Intention to deal in options.—The finding of the jury in this case that no express contract by which plaintiffs agreed to deal for defendant exclusively in options, to be settled by the payment of differences, was proved, must be taken as conclusive, but the defendant was entitled to have the jury instructed as to whether, from the evidence, an intention on the part of both the plaintiffs and defendant to embark in a series of gambling transactions was not established by implication, and as to the consequences of such intention, if established.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed July 7, 1886.
    Mr. W. P. Black and Mr. F. A. Herring, for appellant;
    cited Irwin v. Williar, 110 U. S. 499; Pearce v. Foote. 113 Ill. 228 ; Tenney v. Foote, 4 Bradwell, 594.
    Mr. D. J. Schuyler and Mr. Henry Decker, for appellees ;
    cited Hurd’s R. S. 1885, Ch. 38, § 126; Logan v. Musick, 81 Ill. 415 ; Pixley v. Boynton, 79 Ill. 351; Bailey v. Bensley, 87 Ill. 556 ; Corbett v. Underwood, 83 Ill. 324; Lyon v. Culbertson, 83 Ill. 33; Wolcott v. Health, 78 Ill. 433; Pickering v. Cease, 79 Ill. 328 ; Oldershaw v. Knoles, 4 Bradwell, 63; Pearce v. Foote, 118 Ill. 238.
   Bailey, P. J.

This was an action of assumpsit brought by William Young and two others, co-partners under the firm name of William Young & Co., against Samuel Coffman, to recover an alleged indebtedness growing out of certain dealings had by the plaintiffs for the defendant upon the Board of Trade of Chicago. The plaintiffs, at the time of the transactions in question, were commission merchants and members of the Board of Trade, and the evidence shows that about FTovember, 1882, the defendant was induced by one Mclllianey, who is shown to have been acting in the matter as the plaintiffs’ agent, to employ the plaintiffs to deal for him upon said board, such dealings to consist, in form at least, of purchases and sales of various commodities for future delivery, and that, in pursuance of such employment, the plaintiffs commenced and carried on a series of dealings for the defendant upon said board, extending from the date above mentioned to some time in July following, and aggregating $371,000 in amount. Considerable sums of money were advanced by the defendant to the plaintiffs as margins, and in the early part of said dealings some profits were realized which were paid over to the defendant. Afterward, as the plaintiffs claim, large and repeated losses accrued which they paid, so that, at the close of said transactions, their account showed an indebtedness from the defendant to them of $15,497.47. At the trial, the jury found a verdict in favor of the plaintiffs for this sum and interest, amounting to $16,892.26, and the court, after denying the defendant’s motion fora new trial, gave judgment on the verdict.

It was set up in defense that said dealings.were mere gambling transactions; that although they were in the form of contracts for the purchase and sale of property for future delivery, such form was colorable merely, the real intention of both the plaintiffs and defendant being, that there should be no delivery of the commodity purchased or sold, but that each transaction should be adjusted and settled upon the basis of the differences in the market price at or before the time fixed by the contract for delivery.

The evidence tending to support this defense was conflicting. The defendant testified, in substance, that when Mcllhaney solicited him to enter upon said course of dealings, it was expressly understood and agreed between them that said dealings should be only in options,” and that there should be no delivery of the commodities purchased and sold, but only a settlement upon the basis of differences, and that said dealings were carried on under and in pursuance of such contract. This was disputed by Mcllhaney.

But apart from and in addition to the evidence tending to establish an express contract to deal only in “ options” there was considerable evidence, growing out of the nature and circumstances of said dealings and the conduct and statements of the parties in relation thereto, tending to show that the real design and intention of both the defendant and the plaintiffs in said transactions, was, not to make actual sales and purchases of property, but to deal in c£ options ” to be settled upon the basis of differences, such evidence, in our opinion, being fairly susceptible of a construction which might have warranted the jury in finding an implied contract between them to deal only in that manner. The defendant accordingly asked the court to give to the jury the following instruction, which was refused :

The court instructs the jury, as a matter of law, that if they believe, from the evidence, that the plaintiffs did not actually buy or sell any grain or provisions for the defendant, but that, although the different transactions sued on were, in form, contracts made by the plaintiffs for the defendant for the purchase or sale of grain or provisions to be delivered at a future time, yet at the time of such trades, it was not the intention of the parties herein to actually deliver the grain or provisions contracted for, or to receive and pay for the same, during or at the maturity of the contracts, but that the intention of such parties was to settle the same on the basis of differences in the market price of the commodities, whether by counter trades made at or before the maturity of such contracts or otherwise, without either party performing or offering to perform the contracts according to their terms, then such transactions were only gaming on the price of the commodities and were unlawful, and the plaintiffs can not recover. ”

Section 130 of the criminal code declares all contracts by which a person has or gives to himself or another the option to sell or buy, at a future time, any grain or other commodity, to be gambling contracts and void, and provides for the punishment of persons making such contracts, by fine or imprisonment or both. The rule is now well settled that, to bring a transaction within the provisions of this statute, it is not essential that the contract should, onfits face, purport to give to the party an option to sell or buy, but that if the real intention of the parties, at the time of making the contract, is to deal only in options to be subsequently adjusted or settled upon the basis of the differences in the market price, and not by the delivery of the commodity sold, the transaction is a gambling contract within the prohibition of the statute, even though it may, upon its face, purport to be an absolute contract for the sale or purchase of such commodity for future delivery. It is also settled that where a broker, commission merchant or other agent undertakes to deal for his principal in contravention of said statute, and in doing so makes disbursements or pays losses growing out of such dealings, he can not recover from his principal the money so paid or his commission. Pearce v. Foote, 113 Ill. 228 ; Tenney v. Foote, 95 Ill. 99; Tenney v. Foote, 4 Bradwell, 594; Beveridge v. Hewitt, 8 Id. 467; Colderwood v. McCrea, 11 Id. 543; In ra Green, 7 Biss. 338; Cobb v. Prell, 15 Fed. Rep. 774; Bartlett v. Smith, 13 Id. 263; Bernard v. Backhouse, 52 Wis. 595.

The cases of Pearce v. Foote and Tenney v. Foote, above cited, grew out of the same transactions and presented substantially the same facts. There the parties entered into an express agreement by which S. G. Hooker & Co., who were members of the Board of Trade of Chicago, undertook to deal for said Foote on said board, it being distinctly understood that said dealings should be exclusively in options, and that no property should be delivered or received on his account, but that the transactions should be settled upon differences. S. G. Hooker & Co. thereupon, in pursuance of said agreement, dealt for Foote for a considerable time upon said board, such dealings being, in form, contracts for the purchase or sale of grain for future delivery, made, according to the usual method of dealing on said board, in the name of S. G. Hooker & Co., with other members of the board, all of said contracts, with one exception, being settled before the time for delivery therein prescribed, by the receipt or payment of the differences in price. In neither case was there any evidence as to who the parties were with whom these dealings were entered into by S. G. Hooker & Co. on the board, nor whether such parties had any notice of the agreement between S. Gr. Hooker & Go. and Foote, or participated in their unlawful intent. Said dealings having resulted in large losses which S. G. Hooker & Co. paid, Foote afterward settled up his indebtedness to them for their disbursements and commissions by indorsing and guaranteeing to them certain promissory notes which he then held against another party. The cases above mentioned involved the question of the validity of said guaranties, and it was held that said dealings were gambling contracts within the meaning of section 130 of the criminal code, and therefore void ; and that under said section, as well as under section 131, said guaranties could not be held to be binding on Foote. Section 131 provides that all promises, contracts or agreements, the whole or any part of the consideration of which is for money won by a wager or bet upon any chance, casualty or unknown or contingent event, or for reimbursing or paying any money lent or advanced to any person so betting, shall be void and of-no effect.

In these cases it seems to have been held that so long as it appeared that S. G. Hooker & Go. had agreed with Foote to embark in a series of gambling contracts on his behalf on the Board of Trade, or in other words, to bet for him on the rise and fall of the price of grain on the board, it was immaterial who the other members of the board with whom they consummated such gambling contracts were, or what their intentions may have been. Thus, in Pierce v. Foote the court say: “Fictitious purchases or sales, such as were in contemplation of the parties, were as nothing; and it is a matter of no consequence where it is pretended they were made, whether on the Board of Trade or elsewhere. It would have been quite as well, and would have conformed as nearly to the contract of Hooker & Go., had they simply entered upon their books that they made such purchases or sales on behalf of defendant, without going upon the Board of Trade, and claiming they had made such purchases and sales, and on returning made such entries. Betting on the market could be done just as well in one way as the other.”

The cases of Beveridge v. Hewitt. and Colderwood v. McCrea, supra, differ from the Foote cases only in this : In the Foote cases there was an express agreement to deal only in “options,” while in Beveridge v. Hewitt and Colderwood v. McCrea such agreement was implied from the evidence as to the circumstances and relations of the parties and the nature and mode of their dealings. In all other respects the cases were alike. But it is plain that the intention of the parties to embark in a series of gambling transactions, whether established by direct evidence or implied from other facts, involves precisely the same legal consequences. Such transactions are just as much a violation of section 130 of the criminal code in one case as in the other.

In the present case, as has already been stated, there was evidence of an express contract by which the plaintiffs agreed to deal for the defendant exclusively in options, to be settled by the payment of differences; but as the evidence as to the existence of such contract was conflicting, and as the question of its existence was submitted to the jury by proper instructions, their finding must be regarded as conclusive that no such express contract was proved. But there remained the further question to be determined by the jury from the evidence, whether an intention on the part of both the plaintiffs and defendant to embark in a series of gambling transactions was not established by implication ; and the defendant was entitled to have the jury properly instructed as to the legal consequences of such intention, if established as a fact and shown to have been carried out and put in operation in the series of dealings out of which the indebtedness sued for arose. On that question no instruction was given. The instruction above recited was asked by the defendant for the purpose of advising the jury as to the law upon that theory of the case, and we are of the opinion that it stated the law correctly and should have been given. ^

The instruction was, in substance, that although the transactions in question were, in form, contracts for the purchase or sale of grain or provisions for future delivery, yet, if no actual purchases or sales of grain or provisions were in fact made by the plaintiffs for the defendant, and if the intention of both the plaintiffs and the defendant, at the time of entering into said transactions was, not to perform such pretended contracts, hut to settle on the basis of differences in price, then said transactions were gambling contracts and unlawful, and the plaintiffs could not recover. This instruction seems to be warranted by the principles established by the decisions above cited. It is clear that if there were no actual contracts for the purchase or sale of property, or, in other words, if the pretended sales and purchases were merely fictitious, according to the hypothesis of the instruction, it was manifestly immaterial to inquire as to who may have been the other parties to such pretended- contracts, or what may have been their intentions. The intention of the defendant and his brokers to speculate merely in differences in the market prices of grain and provisions, without making actual purchases or sales, although such intention may not have been evidenced by a formal or express contract, if carried out by a series of pretended dealings entered into for the purpose of effectuating such unlawful intention, was a violation of the express provisions of the statute, and could give no right of action as between them.

Said instruction was erroneously refused, and for said error the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Henry Abrahams v. A. M. Jones.
    1. .Pleading—Breaches of bond regarded as separate counts.— Separate assignments of breaches in suit on bond are to be regarded as separate counts or declarations and are to be pleaded to as such,
    2. Practice—Bad assignment of breaches, how taren advantage of.—If all such assignments of breaches are bad in substance, and none of them show a legal breach of any of the conditions of said bond, advantage of the defect may be taken by the defendant below, by general demurrer, motion in arrest of judgment, or on error.
    8. Bond—Common law construction.—In construing a voluntary common law bond the intention of the statute becomes wholly immaterial, and the liability of the surety will not be extended by implication beyond the precise terms of his undertaking, which is to be strictly construed.
    4. Practice—Cause imperfectly set out cured by verdict.—A verdict will aid a title or cause of action imperfectly set out, but not an imperfect title or cause of action.
    5. Same.—Where there is no traverse of the matters alleged as constituting breaches of the bond, but the same are admitted by the pleadings, the plaintiff below can not he presumed to have introduced evidence supplying imperfections or omissions.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed July 16, 1886.
    This was debt, by appellee against appellant, impleaded with Thomas J. Martin and William A. Graham, upon a bond in the penalty of seven thousand dollars, dated June 15, 1881, made to appellee as marshal of the Northern District of Illinois, by said Martin and Graham, Abrahams, the appellant, signing as surety. The declaration, after thus describing it, and averring that it was subject to a condition thereunder written, is as follows : “ Whereby, after reciting that said Thomas J. Martin and William H. Graham had commenced, in the United States Circuit Court of said district, an action of replevin against On-in L. Mann, sheiifi of Cook county, J. H. Burke, deputy sheriff, Henry G. Lawrence, Morris T. Martin, Alfred S. Trade, Michael J. Blessing, Charles L. Busch, Herman Meyer, H. L. Seixas, James A. Chambers, James A. McDavitt, the Empire Warehouse Company, the Central Warehouse Company, the National Bank of Illinois, the Traders Bank and the Globe Warehouse Company, defendants, for the taking and detaining of fifty barrels of Gray's rye whisky and ten barrels of blackberry brandy, it was provided, that if the said Thomas J. Martin and William H. Graham should personally be and appear before the said circuit court on the first day of the next term thereof, to be holden at the United States Court room, in the city of Chicago, on the fourth day of the July then next following, and should then and there prosecute said suit to effect, and without delay, and make return of said property to said defendants, if return thereof should be awarded by the said circuit court, and should save, keep harmless and indemnify the said plaintiff, so being such marshal as aforesaid, his heirs, executors and administrators, and also his deputies and all persons acting with, under or by the instructions of him, said plaintiff, or his deputies, all and each of them, of and from all actions, costs, suits, charges, damages and expenses whatever, including attorneys’ fees which should or might thereafter happen, accrue, or come to them, or either of them, for, or by reason of the execution of the writ of replevin issued in said action of replevin therein mentioned, and for retaining possession of and selling any or all of the said property taken under said writ or other process thereafter to be issued in said action, or by reason of assisting in such execution or sale, then this said writing obligatory was to be void, otherwise to remain in full force and effect, as by said writing obligatory and the said condition thereof remaining filed in said court will appear.” Then follows the assignment of breaches: “And although the said plaintiff, to wit, on the day first aforesaid, by virtue of the said writ, then replevied and made deliverance of the said goods and chattels to the said Thomas J. Martin and William H. Graham; and although afterward, to wit, at the December term of said court, in the year 1883, it was considered and adjudged by the said court that said cause should be dismissed as to said Traders Bank and the said fifty barrels of whisky, and that the said fifty barrels of whisky mentioned in the writ of replevin, and said writing obligatory, should be returned to the said Traders Bank, and that the said Traders Bank should recover its costs in that behalf against the said Thomas J. Martin and William H. Graham, nevertheless, the said Thomas J. Martin and William H. Graham did not make a return of the said fifty barrels of whisky, or any part thereof, to said Traders Bank, but have hitherto refused and still do neglect and refuse so to do; whereby an action has accrued to the plaintiff to demand of the defendants said sum of seven thousand dollars above demanded.
    And plaintiff further says, that by reason of the bringing of said replevin suit and taking of said goods and chattels therein mentioned, as aforesaid, the said Traders Bank was compelled to and did pay out divers large sums of money to wit, the sum of twenty-five hundred dollars, in and about defending said replevin suit and obtaining judgment for the return of its said goods and chattels. Yet the said defendants, though requested, have not paid to the plaintiff said sum of money above demanded, but refuse so to do, to the damage of plaintiff of five thousand dollars,” etc.
    Of the defendants, Abrahams, the surety, alone was served and filed pleas.
    The pleas were non est factum, and a plea under the statute that the merits had not been determined in the trial of the replevin suit, and that the goods replevied were the property of Martin and Graham. There was a trial by jury of the issues raised by said pleas and replications thereto, and a verdict finding the issues for the plaintiff and assessing his damages at §4,528 against appellant; whereupon the latter moved in arrest of judgment, which motion was overruled and judgment passed for the amount of penalty in bond as debt and damages as aforesaid, from which this appeal is prosecuted. Error is assigned for denying that motion.
    Messrs. Moses, Newman & Reed, for appellant.

      Messrs. Flower, Remy & Gregory, for appellee.
   McAllister, J.

This action is upon a penal bond for the performance of covenants. The declaration sets out the bond and its conditions, and what purports to be two separate assignments of breaches, which are to be regarded as separate counts or declarations, and to be pleaded to as such. Safford v. Miller, 59 Ill. 209.

By the settled rules of practice in this State if both such assignments of breaches are bad in substance, and neither of them shows a legal breach of any of the conditions of said bond, advantage of the defect might he taken by the defendant below by general demurrer, motion in arrest of judgment, or on error.

From our understanding of the record in this ease, two material questions are properly presented for decision. First, was there any legal breach of any covenant embraced in the condition of said bond set forth and shown by either of said assignment of breaches. Secondly, if both were defective, was such defect cured by the verdict.

In the outset, it should be stated, (and the statement does not admit of controversy,) that the condition of the bond herein is not framed in conformity with, but is substantially variant from the condition as prescribed by § 10 of our Replevin Act, and there is no United States statute prescribing any. It is therefore to be regarded as a voluntary, common law bond; so that, in construing its covenants, the intention of the statute becomes wholly immaterial. In such case the liability of the surety will not be extended by implication or construction beyond the precise terms of his undertaking, which is to be strictly construed. Waters v. Simpson, 2 Gilm. 570; Sharp v. Bedell, 5 Gilm. 88; Ovington v. Smith, 78 Ill. 250; Miller v. Stewart, 9 Wheaton, 680; Lang v. Pike, 27 Ohio St. 498; Chase v. Ries, 10 Cal. 518.

The part of the condition of said bond on which the final assignment of breach is predicated, was that Martin and Graham (the plaintiffs in the replevin suit) should make return of said property to said defendants if return thereof should he awarded by the said circuit court.

The said replevin suit was by Martin and Graham against seventeezz different defendants, charged with having jointly, wrongfully taken and detained the goods described in the writ. Among those defendants was. the Traders Bank. Mow the breach assigned was that said circuit court awarded a return of fifty barrels of whisky (which was a part of the goods replevied) to said Traders Bank, and that Martin and Graham had neglected and refused to make suck return to said Traders Bank. There is no allegation that the court had awarded a return to the defendants, or that Martin and Graham had neglected, refused or failed to make return of the property to the defendants. Thez'e is nothing appearing on the face of the bond to show that the interests of the defendants in the replevin suit were several as respects the goods replevied, or any of them. Forina v. Tesson, 1 Black. 309; Bradburne v. Botfield, 14 Mees. & Welsb., 559. What is stated does not amount to a breach of the undertaking according to its terms? and, consequently, no cause of action was stated by that first assignment of breach.

The second assignment of breach is in effect that said Traders Bank had been compelled to and did pay out divers sums of money amounting, to wit, to twenty-five hunched dollars in and about defending said replevin'suit and obtaining said judgment of return, which the defendants, though requested, had not paid to the plaintiff. There is no undertaking in the condition of the bond sued upon, that the obligoi-s in that bond would pay to the plaintiff as United States marshal any money which the Traders Bank or any other defendant in the replevin suit should be compelled to expend in the defense of that suit. And there is no allegation in that assignment of breach or elsewhere in the declaration, that the plaintiff in this present suit, the said marshal, had been dazzmified or had been compelled to pay or become liable to pay said Traders Bank any sum by reason of having executed said wz-it of replevin. So that said second assignment of breach fails to show any breach of the condition of said bond or any cause of action.

The next question is whether the defects in the several counts above pointed out are cured by verdict.

Neither of the pleas, non est factum or the plea that the merits had not been tried and property in Martin and Graham, put in issue any of the matters assigned for breaches, but impliedly admitted them.

There seems to us to be two reasons why the verdict can not be held to have cured the defect in the declaration. The first arises from the general rule of practice. The general rule is, that a verdict will aid a title or cause of action imperfectly set out, but not an imperfect title or cause of action. Here is a case of an imperfect cause of action. The other reason is that there being no traverse of the matters alleged as constituting breaches, but the same being admitted by the pleadings, the plaintiff below can not be presumed to have introduced evidence supplying imperfections or omissions.

The ease of King v. Sea, 6 Bradwell, 190, is directly in point, and cites the authorities applicable to the question. Dale v. Dean, 16 Conn. 579, is also in point, and presents an able and exhaustive discussion of the law.

We are of opinion that the court below erred in not sustaining the defendant’s motion in arrest of judgment, for the insufficiency of the plaintiff’s declaration.

For that error the judgment will be reversed, the cause remanded and a repleader awarded.

Judgment reversed.