text:
    Philip H. Decker v. John Patton et al.

      Filed at Ottawa May 12, 1887.

    1. Bill to redeem—of the decree—certain directions as not amounting to a strict foreclosure. A proper decree on allowing a bill to redeem from a mortgage, as a general rule, is, that the complainant be allowed to redeem the premises upon payment of the sum found to be due, within a reasonable time to be fixed therein, together with the costs, and directing the defendant to discharge the mortgage on the payment of the money, and that on default of such payment within the time specified, the bill be dismissed. It is not error to fail to order sale of the premises on default of payment.
    2. A sale was had of real estate under a decree of foreclosure, without making one having an interest in the property, a party. On bill by him to redeem from such sale, the court found the sum due on the mortgage debt, and decreed that upon its payment, together with costs, in one year, the sale should be set aside and the trustee release the trust deed, and that on failure to make such payment the bill stand dismissed, and the master execute a deed to the purchaser at the foreclosure sale: Held, that the decree was proper, and could not be regarded as a decree of strict foreclosure.
    3. Pleading and evidence—relevancy of testimony. On bill to redeem premises from sale under a decree of foreclosure by one not a party to the decree, the complainant offered to show certain judgments existing against him, the bill containing no allegations as to such judgments: Held, that the evidence was irrelevant, and properly refused. If the proceeding had been one to foreclose the mortgage, the evidence might have been proper on the question of a right to a strict foreclosure.
    Writ oe Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. W. T. Burgess, for the plaintiff in error:
    The right to redeem, and the sum due, were not contested. The main error assigned is, that the court denied a sale of the property and entered a decree of strict foreclosure, instead of ordering a sale under the statute.

      The offer to pay the sum found due is not such a material allegation as that the court can predicate a decree upon it. Barnard v. Cushman, 35 Ill. 451; Dwen v. Blake, 44 id. 136; Webster v. French, 11 id. 254.
    A decree dismissing a bill, on failure to pay, within the time limited, the amount found, and costs, operates as a foreclosure of the mortgage. 2 Jones on Mortgages, sec.,1108; Quinn v. Brittain, Hoffm. 353; Shannen v. Spears, 2 A. K. Marsh. 211; Bolles v. Duff, 43 N. Y. 469; Beach v. Cooke, 28 id. 503; Perinne v. Dunn, 4 Johns. Ch. 140; Adams v. Cameron, 40 Mich. 506; Bishop of Winchester v. Paine, 11 Ves. 199.
    The facts show the property worth $7000, and judgment creditors not parties to the proceeding. In such case, a strict foreclosure is erroneous. Johnson v. Donnell, 15 Ill. 99; Sheldon v. Patterson, 55 id. 507; Warner v. Helm, 1 Gilm. 220; Farrell v. Parlier, 50 Ill. 274.
    Messrs. Hutchinson & Luff, for the defendants in error:
    Upon a bill to redeem, the proper decree is, that the complainant may redeem upon paying the amount found due on the mortgage, within a specified time,-together with costs; and upon his doing so, the defendant shall discharge the mortgage and deliver up the mortgaged premises, and that upon default of such payment the bill be dismissed, with costs. 2 Daniell’s Ch. Pr. 998; 2 Jones on Mortgages, secs. 1106, 1107; Harper v. Ely, 70 Ill. 581.
    The records of the judgments against complainant were properly excluded. They were not set up in the bill, the judgment creditors were not parties to the suit, nor were any of the parties to this suit, except complainant, parties or privies to the suits in which such judgments were, rendered. 1 Starkie on Evidence, 213; 1 Greenleaf on Evidence, see. 522; Whitaker v. Wheeler, 44 Ill. 440.
   Mr. Justice Craig

delivered the opinion of the'Court:

Thomas W. Saunders, and Mary P. Saunders, his wife, executed and delivered to Mindwell L. Gr. Patton a deed of trust on certain property in Chicago, to secure the payment of $2500. The indebtedness not having been paid when it became due, according to the terms of the notes and deed of trust, Mindwell L. Gf. Patton filed her bill to foreclose the deed of trust. A decree of sale was rendered, and on the 1st day of April, 18S2, the premises were sold, and bid in by complainant for the amount of debt, and costs. Philip H. Decker, who acquired an interest in the property subsequent to the deed of trust, was not made a party to the foreclosure proceedings, and on the 28th day of May, 1883, he filed this his bill to redeem from the sale which had been made under the decree rendered in the foreclosure proceedings. The complainant in the foreclosure proceedings, Mindwell L. Gr. Patton, and others, were made defendants to the bill. Answers were put in, and the cause proceeded to a hearing, on the pleadings and proofs, on the 2d day of November, 1885, when a final decree was rendered. In the decree, the court found that there was due Mindwell L. G. Patton, on the promissory notes and trust deed executed by Thomas W. Saunders and wife, the sum of $2947.71; that the complainant, Decker, be allowed to redeem, by paying to the clerk of the court, within twelve months, the amount found due, with interest at six per cent per annum from that date, and costs. The decree also contained the following provision: “That on payment of said sum of money, interest and costs, in the time hereby limited, the decree in case of Patton v. Saunders et al., on March 1, 1882, and sale thereunder, be set aside, etc., and said trustee execute a proper release of trust deed. If said Decker shall not redeem said premises from said deed of trust by paying the money "above provided for within the time limited, his petition and bill filed herein shall be dismissed, and he shall from thenceforth stand absolutely debarred and foreclosed of and from all equity of redemption in and to said mortgaged premises, and the master execute a deed under said sale to said Patton, or her assigns. ”

It will be observed that the decree did not order the premises to be sold in case the complainant failed to pay the amount which entitled him to redeem, and upon this ground the complainant in the bill seeks to reverse a decree rendered on his own bill, in his own behalf. The time allowed for the payment of the redemption money (one year) was quite liberal in favor of the complainant, and would seem to afford ample opportunity to raise the money and discharge the incumbrance on the premises, and unless the law imperatively demands a re-sale in case the redemption money should not be paid, no good reason occurs to us why the decree should contain a provision of that character.

In 2 Daniell’s Chancery Practice, page 644, in speaking on this subject, the author says : “The same practice is also to be observed in the case of decrees for the redemption of a mortgage, which usually directs the plaintiff to pay the balances reported due to him within six months after the report, in default of which, the plaintiff’s bill against the defendant is from thenceforth to stand dismissed out of court, with costs to be taxed by the master. Under this decree, although it directs that in default of payment by the plaintiff his bill is to stand dismissed, with costs, yet it will not be so dismissed without a final order, which, however, may be obtained as of course.” The same rule is laid down in 2 Jones on Mortgages, secs. 1106, 1107. The author says: “The form of the judgment ordinarily is, that the plaintiff may redeem upon paying the amount due on the mortgage, within a specified time, together with costs, and that upon his doing so the defendant shall discharge the mortgage and deliver up the mortgaged premises, and that upon default of such payment the complaint be dismissed, with costs.” See, also, Pilmon v. Thornton, 66 Me. 469, where the same doctrine is announced. Indeed, we think it may be laid down as a general rule, on a bill to redeem, a proper decree is, that the complainant may be allowed to redeem the mortgaged premises upon payment of the amount found to be due, within a reasonable time to be named in the decree, together with the costs, and directing the defendant to discharge the mortgage on the payment of the money; but in case default shall be made in the payment of the money within the time specified, the bill should be dismissed.

The case of Hollingsworth v. Koon, 117 Ill. 514, has been cited as an authority; but that was not a bill to redeem, and the opinion does not undertake to lay down or establish any rule of practice which should control where a bill to redeem has been filed.

On the hearing, the complainant offered to show certain judgments existing against him in the courts of Cook county. The court excluded the evidence, and the ruling on the offered evidence is relied upon as error. The bill contained no allegations in regard to judgment creditors, nor were they parties to the proceeding. No relief was sought in their behalf or against them. Under such circumstances, we fail to see what advantage it would be to complainant to prove the existence of judgments against him.

But it is said in the argument, that the property was worth more than the mortgage debt, and if -there were judgment creditors, it was erroneous to decree a strict foreclosure. Had this been a bill to foreclose a mortgage, and had a decree been rendered cutting off the rights of parties in interest, without a sale of the mortgaged premises, and denying the redemption provided by the statute, there might be force in the argument. But such was not the case. As was said before, Mindwell L. G. Patton foreclosed her mortgage by bill. A sale was made, under which all persons in interest had opportunity to redeem within the time prescribed by the statute. But no redemption was made, and no effort whatever was made in that direction until fourteen months after the sale, when this bill was filed by Decker to redeem from the mortgage sale. The decree which was rendered in this case may, and probably does, cut off all equities and rights of Decker in case he fails to redeem within the time prescribed by the decree, but that does not render it a strict foreclosure decree, as contended by counsel for plaintiff in error. On the other hand, it is an ordinary decree on bill to redeem.

No error appearing in the record, the judgment of the Appellate Court will be aErmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    John Endsley v. Joshua Johns.

      Filed at Springfield May 12, 1887.

    1. Hraud and deceit—liability of one who receives no advantage from his false representations. If a person damages another by false representations made with intent to deceive, knowing the same to be false, he will be liable to the party so injured, in an action for deceit, notwithstanding he may derive no benefit by the deceit, and did not collude with the party benefited. The fraud and the scienter constitute the ground of the action.
    2. Same—of the intent to deceive-—whether essential. If there was no intention to deceive, the person making the representation honestly giving his own opinion, believing he is stating the truth, will not be liable, though his statement may be wholly untrue. But when he knowingly states what is untrue, a fraudulent purpose will be inferred; and when the statement relates to the matter inquired of and being relied on, and necessarily brings damage to the person misled, he having no knowledge of its untruth, the action will lie.
    3. Same — as between vendor and vendee. As between a vendor and vendee, the general rule is, that false assertions respecting value are not actionable, for the reason that value is, at most, an opinion, and the antagonistic position of the parties is sufficient to put the vendee on his guard. But when the vendor leaves the domain of judgment and opinion, and falsely asserts a fact, as, of quantity, grade, boundary, and the like, inducing reliance and action thereon by one without knowledge of the falsehood, or the present opportunity or ability of verification, and under circumstances justifying belief, and damage results in consequence, an action will lie.
    4. Same—false representations by third persons. The principle controlling where the relation of the parties is that of vendor and vendee, has no application when the representation complained of is made by a third party as to the character and credit of another, or asserting another’s solvency or reliability. In such case, if a material representation is made with knowledge of its falsity, to one ignorant of its falsity, under circumstances justifying a reasonably prudent man’s belief, and it is believed and acted upon with consequent injury, an action will lie.
    5. Same—how far one may rely upon the representations of another. Where the representations relate to a material fact within the knowledge of the party making them, or he assumes to make them upon his personal knowledge, and with respect to which the person to whom they are made has not the present opportunity or ability to test or verify, the latter will have the right to rely upon such representations, in the absence of facts apparent to reasonably arouse suspicion and throw doubt upon their truth, and he will not be bound to go any further, and make inquiries in respect thereof.
    6. Evidence—in an action for fraud and deceit—as tending to show the defendant’s knowledge of the facts. In an action on the case by the vendor of cattle, against the agent of the purchaser, based on the alleged false and fraudulent representations of the agent as to the solvency and financial ability of the purchaser, whereby the vendor was induced to accept in payment a worthless check of the purchaser, the court allowed the purchaser to testify, on behalf of the plaintiff, that he made an arrangement with the defendant, the day before the transaction, to “make the check good” with the plaintiff, which was objected to: Held, that the evidence was competent, as tending to prove the defendant’s knowledge of the truth of the alleged representation.
    7. Pleading and evidence—proving one of several causes of action alleged. Where each of several counts of a declaration shows certain false and fraudulent misrepresentations of a material fact, but stated differently in form, which, coupled with other averments, show a right to recover, the different allegations in respect to the representations may be regarded as divisible, and the plaintiff may succeed if he can prove any one of them which, of itself, makes a cause of action.
    8. Same—in action for fraud and deceit—whether necessary to prove allegations precisely as laid. In an action for fraud and deceit, the plaintiff may recover although he may not prove the misrepresentations precisely as laid, nor in all the different forms as laid. He is only required to prove, substantially, the material allegations. He need not prove the exact words charged in the declaration.

      9. Sake—when the price becomes payable. The purchaser of cattle selected an agent to weigh and receive the same, and left with such agent his check signed in blank, and the agent filled the blank for the proper amount and tendered the same to the plaintiff, who was induced to accept the same by the false and fraudulent representations of the agent, of the purchaser’s financial ability, which check proved worthless. In an action by the vendor, against the agent, to recover damages for the fraud and deceit practiced on him, the court instructed the jury, that when a sale of personal property is made, and the time of payment is not agreed upon, the price is due and payable on delivery: Held, that there was no error in giving the instruction.
    10. Instructions—construed—whether dispensing with preponderance of evidence. An instruction for the plaintiff, in an action to recover for fraud and deceit, that the plaintiff is not required to prove the exact words of misrepresentation laid in the declaration to- entitle him to recover, and that it is only necessary for him to prove that substantially the statements set forth in the declaration were made by the defendant, is not subject to the objection of relieving the plaintiff of the obligation of supporting his case by a preponderance of the evidence.
    11. Same—leaving the jury to judge of the materiality of allegations in a pleading. It is a general rule, that the court must determine what allegations in a pleading are material and necessary to be proved. But this rule must have a reasonable application.
    12. In an action for fraud and deceit, based on certain alleged misrepresentations as to the solvency of the maker of a check, the representations were stated in different forms in the two counts of the declaration, but they were much the same in effect, so that each misrepresentation, when coupled with the general averments in each count, would constitute a separate cause of action. The court instructed the jury, to the effect that if the defendant made the representations alleged in the declaration, or the material part of them, and that they, or the material part of them, were false, to find for the plaintiff. The representions, as alleged, were all material: Held, that the instruction, under the circumstances, was not calculated to mislead the jury or injuriously affect the defendant, and that the error in leaving the jury to find what representations were material, was not such as should reverse.
    13. Error wikk not akways reverse—as to the giving of instructions. If the court can see that an instruction complained of, taken in connection with the whole series of instructions, and the allegations and proofs in the particular case, could not have misled the jury to the prejudice of the party complaining, the verdict may stand, notwithstanding there may be some error in the same.
    14. Practice—objection to evidence. A party can not assign for error the admission of evidence, which was not objected to when offered.

      Appeal from the Appellate Court for the Third District;—• heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    The declaration contained two counts, in each of which it was alleged that John Kimlin purchased cattle of Johns, and gave his check on the First National Bank of Kansas, Illinois, for $1041.74, (th'e price of the cattle,) and that Endsley falsely and deceitfully represented to Johns that Kimlin was solvent, and that the check was good, and would be honored by the bank, and then averred that Kimlin was insolvent, and the check was not good, and that Endsley knew these facts, etc.
    The plaintiff’s second and sixth instructions are as follows:
    “2. The court instructs the jury, that if you believe,- from the evidence, that the defendant made the representations alleged in the declaration, or the material portion of them, and that such representations, or the material part of them, were false, and were known by the defendant, at the time of the making, to - be false, and that the plaintiff relied upon such representations as true, and by reason of the same delivered the possession of his cattle to Kimlin, and accepted his said check, and that the same was of no value, then your verdict should he for the plaintiff. ”
    “6. The law is, that if a person makes an untrue statement to another, knowing it to be untrue, and the person to whom it is made has no knowledge of its untruth, but relied on such statement as true, and acted upon the same and was injured thereby, then the person so making such statement is liable for the damages accruing to the party thus acting. ”
    Messrs. Palmers, Robinson & Shutt, and Messrs. Golden & Fryer, for the appellant:
    It was error to submit to the jury to determine the materiality of the statements in the pleadings. Insurance Co. v. Rothschild, 82 Ill. 166; Williams v. McClure, 65 id. 390; Railway Co. v. Porter, 92 id. 437.

      The sixth instruction is subject to two serious objections: First, to authorize a recovery, the representations must be material; and second, the plaintiff must have exercised ordinary care to guard against deception. These two principles are ignored by the instruction. Schwabacker v. Riddle, 99 Ill. 343; Cooley on Torts, 487.
    Where the evidence is conflicting as to the controverted facts and issues in a case, it is essential that the several instructions be accurate. Ruff v. Jarrett, 94 Ill. 475; Swan v. People, 98 id. 610; Keyes v. Fuller, 9 Bradw. 528; Bauchwitz v. Tyman, 11 id. 186; Railroad Co. v. Dvorak, 7 id. 555.
    In an action for deceit the plaintiff must allege and prove scienter. Weatherford v. Fishback, 3 Scam. 170; Walker v. Hough, 59 Ill. 378; Mitchell v. Deeds, 49 id. 418; Tone v. Wilson, 81 id. 529; Schwabacker v. Riddle, 99 id. 343; Johnson v. Berry, 9 Bradw. 70; Merwin v. Arbuckle, 81 Ill. 501; Mash v. Falkner, 40 N. Y. 562.
    The deceit must be willful, with intent to defraud. 1 Hilliard on Torts, chap. 1, sec. 9; Weatherford v. Fishback, 3 Scam. 170.
    Ho action lies for false representation, unless the party making it knows it to be untrue, and makes it with the intention of inducing the other party to act upon it, and the latter does so act upon it to his damage. 1 Hilliard, chap. 1, sec. 9; Behn v. Kemble, 7 C. B. 260.
    A fair and reasonably well-grounded belief that the representations were true, is a sufficient defence, however unfounded they may turn out to be. 1 Hilliard, chap. 1, sec. 9; Shrusbery v. Blount, 2 Scott, 588; Manes v. Kenyon, 18 Ga. 291; 2 Mann & G. 47; Eaves v. Twitty, 13 Ired. 468; Gatling v. Newell, 9 Ind. 572.
    Messrs. Wiley & Neal, for the appellee:
    There was nd error in the admission of evidence. The burden of proving knowledge by the defendant that Kimlin’s check was not good, was on the plaintiff, and to show that knowledge, it was competent to prove conversations between the plaintiff and defendant. The shipping bills were admitted without objection.
    The first instruction was given to show that plaintiff had not failed to prove the contract as alleged—a sale', to be paid for on delivery. It contains a correct principle of law.
    The second instruction would have been free of criticism if it had used the expression, “substantial” portion of them, instead of “material.” The instruction is substantially good. Ladd v. Piggott, 114 Ill. 647.
    It is claimed that the sixth instruction is like one condemned in Schwabacker v. Riddle, 99 Ill. 343. But there will be found a marked difference. Besides, the statements claimed to have been made by appellant were material.
    To recover for deceit, all that is necessary to prove, is, first, that the representations made are untrue; second, that the party making them knew them to be false; and third, that the plaintiff relied upon the representation as true, and was induced to act upon it. Dwight v. Chase, 3 Bradw. 67; McBean v. Fox, 1 id. 177; Merwin v. Arbuckle, 81 Ill. 501; Wheeler v. Randall, 48 id. 182; Hiner v. Richter, 51 id. 299; Benton v. Pratt, 2 Wend. 386; Patton v. Gumly, 27 Mass. 182; Nolte v. Rescheln, 96 Ill. 425; Gallagher v. Brunel, 6 Cow. 347; Kerr on Fraud and Mistake, 53; Brandt on Surety-ship and Guaranty, sec. 59.
    In Pasley v. Freeman, 3 T. R. 51, Justice Buller says: “If a man wickedly assert that which he knows to be false, and' thereby draw' his neighbor into a heavy loss, the law should compel him to pay for it.” This was approved by the court in Benton v. Pratt, 2 Wend. 368, Upton v. Vail, 6 Johns. 181, and Weatherford v. Fishback, 3 Scam. 170.
    Mr. Horace S. Clark, also for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

This was an action on the case, for fraud and deceit, brought to the circuit court of Coles county, resulting in a verdict and judgment for the plaintiff. On the defendant’s appeal, the Appellate Court for the Third District affirmed the judgment, and on his further appeal the case is brought to this court.

An accurate statement of the character and state of the pleadings, and issues arising thereon, will be found in the opinion of the Appellate Court, (Endsley v. Johns, 17 Bradw. 466,) rendering any further statement here unnecessary; and as this is an appeal from a judgment of the Appellate Court affirming the judgment of the circuit court, the finding and judgment of the former as to all contested questions of fact, must necessarily be taken as conclusive upon this court, and will be so. regarded in our consideration and discussion of the questions of law arising upon the record.

It is not denied that an action of this character can be maintained, and counsel for appellant concede that the case made by the appellee, in his declaration, is within the doctrine of Weatherford v. Fishback, 3 Scam. 170. And as there is abundant evidence in the record upon which this verdict and judgment may rest, it only remains for us to consider the questions of law arising upon the action of the trial “court in admitting or rejecting evidence, and in giving or refusing instructions.

Our attention is called to two alleged erroneous rulings on the admissibility of evidence. The same question was made in the Appellate Court, and the answer of that court seems to us conclusive. That court said: “It is urged, also, that the court erred in permitting Kimlin to testify that he made an arrangement with defendant, the day before the transaction, to ‘make the check good ’ with plaintiff. This would be competent, as tending to prove the defendant’s knowledge of the truth of the alleged representation. It is also objected, that there was error in allowing the introduction of certain shipping bills in which Kimlin and defendant were jointly interested. We can not consider this, because it does not appear that these matters of evidence were objected to when they were offered.”

Objection is urged to appellee’s first instruction, wherein the jury were told, that when a sale of personal property is made, and the time of payment is not agreed upon, “the law is that the price is due and payable upon delivery of the property sold.” The objection is, that it states an abstract proposition of law, “and was intended either to impose some duty upon the defendant because of the delivery of the cattle to him, or to lay the foundation for a presumption that the defendant made” the deceitful representations imputed to him. The instruction stated the law with substantial accuracy, and under the averments of the declaration, aiid the exfidence, the jury might well be told, as in effect they were by this instruction, that when Johns delivered the cattle Kimlin had bought of him, to Endsley, the agent of Kimlin to receive the cattle, Johns had a right to be paid the purchase price therefor. Kimlin had selected Endsley to receive the cattle from Johns, to weigh them, and to pay for them with •Kimlin’s signed blank c^ieck placed in Endsley’s hands for that purpose the day before. Endsley did receive and weigh the cattle, and filled in the proper amount in Kimlin’s signed blank check, and tendered the same to Johns in payment for the cattle. Johns accepted the.check in payment, after, as he says, Endsley made to him the false and deceitful representations alleged. Johns had a right to be then paid in money; and that he waived this right, and took instead a worthless bit of paper, was because of the alleged false and deceitful representations as to the financial ability of the maker of the paper, to him, by Endsley.

The appellee’s second instruction is said to be erroneous. Therein the jury were told, that if the'defendant made the representations alleged in the declaration, or the material part of them, and that such representations, or the material part of them, were false, etc., then the verdict should be for the plaintiff. The objection is, that the jury were thus authorized to determine what part of the alleged representations were material,—that this is a question of law for the court, and not a question of fact for the jury. The instruction is open to the criticism made. It is a general rule, that the court must determine what allegations in a pleading are material and necessary to be proved, and it is improper to submit that question to the jury. But this rule must receive a reasonable application. It is not every error that will reverse, and if the court can see that the instruction complained of, in connection with the whole series of instructions, and the allegations and proofs in the particular case, would not mislead the jury or injuriously affect the adverse party, the verdict may stand, notwithstanding the error. This principle has been applied so often, and is so well understood, that citation of authority is unnecessary.

In this case, the allegations of falsehood and deceit were stated in different forms in the two counts of the declaration, and it is seen that they are all very much the same in effect, and that each so-called misrepresentation, when coupled with the general averments in each count, would constitute a separate cause of action. Under such circumstances, such allegations may be regarded as divisible, and the plaintiff may succeed, if he can prove any one of them which, of itself,, makes a cause of action. This was the view taken by the Appellate Court, and rightly. But it is also true that the plaintiff might recover although he did not prove the misrepresentations precisely as laid, (Ladd v. Pigott, 114 Ill. 647,) nor in all the different forms as laid; but it was required of him to prove substantially the material allegations. Here, the alleged misrepresentations were all and each of them material, and the jury were not required to distinguish between material and immaterial misrepresentations. They all related to the simple inquiries : was the check good; would it be paid; were appellant’s representations false, and did he know them to be false; were they made with intent to deceive. Unless the alleged representations were false, known to be false, and made with intent to deceive, the plaintiff could not recover. There was the sharpest conflict in the evidence. The jury could take no middle ground. Unless they believed appellee and his witnesses, no material allegation as to representations was proved; if believed, every such allegation was proved. In such case, we can not say the instruction was calculated to mislead the jury or injuriously affect the appellant, and the error was not such as should reverse.

By the third instruction the jury were told, that the plaintiff was not required to prove the exact words of misrepresentation laid in the declaration, to entitle him to recover, and that it was only necessary for him to prove, that, substantially, the statements set forth in the declaration were made by the defendant. The objection urged is, that the plaintiff was thereby relieved from the obligation of supporting the case made by the declaration, by a preponderance of the evidence. The declaration averred that appellant made certain statements and representations to appellee, and set out such representations. By this instruction the jury .were told, that appellee might recover, although he had not proved that appellant used the exact words laid in the declaration, if he had substantially proved them. We said in Ladd v. Pigott, supra: “Plaintiff is, perhaps, not bound to prove the representations precisely as alleged, but he must prove the substance or the material part of such representations, and more strictness than that the law does not require.” The instruction under consideration is not only within the rule of the Ladd case, but does not assume, directly or inferentially, to relieve the appellee from the just obligation of maintaining his case by a preponderance of the evidence.

The next objection is to appellee’s sixth instruction, which told the jury, that if a person, makes an untrue statement to another, knowing it to be untrue, and the person to whom it is made has no knowledge of its untruth, but relied on such statement as true, and acted upon the same and was injured thereby, then the person making such statement is liable for the damages accruing to the party thus acting. This, it is urged, is an incorrect statement of the rule of law applicable to cases of this character.

The right of one damaged by the false representations of another, made with intent to deceive, and known to be false, to have his action on the case for deceit, notwithstanding the offender was not benefited by the deceit, and did not collude with the person benefited, must be regarded as established. The leading case upon this subject is Pasley v. Freeman, 3 Term Rep. 51. It is also found in 2 Smith’s Leading Cases, part 1, page *66, to which is added an extended note, wherein all the English and American cases are grouped, and to which particular reference is made. The principle was first adopted and announced by this court in Weatherford v. Fishback, 3 Scam. 170, on the authority of the leading case of Pasley v. Freeman, and Upton v. Vail, 6 Johns. 181, Barney v. Dewey, 13 id. 224, Young v. Covell, 8 id. 23, Foster v. Charles, 6 Bing. 396, and Corbett v. Brown, 8 id. 33. And it was there said: “The fraud and the scienter, though the party had no personal interest in practicing it, seem to constitute the ground of the action,—the gravamen being the deceit, and the scienter the gist of the action.” The same principle has been recognized in Eames v. Morgan, 37 Ill. 260, Wheeler v. Randall, 48 id. 182, Hiner v. Richter, 51 id. 299, Merwin v. Arbuckle, 81 id. 501, and other cases.

In discussing this instruction, the Appellate Court aptly said: “The ground of action is fraud and damage. There must be scienter, a misrepresentation, and a consequent loss. Fraud includes an intention to deceive. If there is no such intention, the party honestly giving his own opinion, believing he is stating the truth, is not liable, though the statement be wholly untrue, Where, however, he knowingly states what is untrue, a fraudulent purpose must be inferred; and when the statement relates to the matter inquired of, and being relied on necessarily brings damage to the person so misled, he having no knowledge of its untruth, the action will lie. ”

But it is urged that this instruction is fatally defective because it ignores the principle that the plaintiff, before he can recover, must exercise ordinary prudence to guard against the deception and fraud practiced upon him, unless he has been thrown off his guard by the other party,—citing Schwabacker v. Riddle, 99 Ill. 343. We can not adopt the construction sought to be placed on the Schivabacker case by counsel, nor admit its application to this case. Counsel lose sight of the marked distinction, clearly recognized by the authorities, between the representations made by the vendor to the vendee, and those made by a third party. As between vendor and vendee, the general rule is, that false assertions respecting value are not actionable, upon the principle that value is, at most, an opinion, and the antagonistic position of the parties is sufficient to put the vendee upon, his guard. The vendor may praise his property, and place a value upon it exceeding what he may know it to be worth, and try to induce its purchase on the basis of such valuation, without incurring liability as for deceit. But when he leaves the domain of judgment and opinion, and falsely asserts a fact, as, of quantity, grade, boundary, and the like, inducing reliance and action thereon by one, without knowledge of the falsehood, or the present opportunity or ability of verification, and under circumstances justifying belief, and damage results in consequence, the action will lie. The Schwabacker case was between vendor and vendee, and the representations were in respect of the amount of goods belonging to a firm, shown by an invoice and valuation by disinterested persons; and the doctrine of that case is, that under such circumstances the plaintiff must not allow himself to be blindly credulous of a fact the means •of verification of which was at hand and available to him. But the principle controlling where the relation of the parties is that of vendor and vendee, can have no application' where the representation complained of, as in this case, is made by a third party as to the character and credit of another, or asserting another’s solvency or reliability. The position of the parties is not antagonistic,—rather one of confidence. In such •case, if the material representation is knowingly falsely made to one ignorant of its falseness, under circumstances justifying a reasonably prudent man’s belief, and it is believed and acted upon with consequent injury, an action therefor will lie; and this we understand to be in harmony with the current and weight of American decisions where the doctrine of Pasley v. Freeman has been accepted.

It may therefore be laid down as a general proposition, deduced from a consideration of all the authorities, that where the representations relate to a material fact within the knowledge of the person making them, or 'which he assumes to assert upon his personal knowledge, and with respect to wBich the person to whom the representations are made has not the present opportunity or ability to test or verify, the latter has a right to rely upon such representations, and in the absence of facts apparent to reasonably arouse suspicion and throw doubt upon the truth of the statements, he is not bound to go further and make inquiries in respect thereof.

Applying these principles to the instruction under consideration, and in view of the facts disclosed by the evidence, the law of the case was stated with substantial accuracy. Endsley knew Kimlin’s financial condition,—knew that he Bad no money in the Kansas bank,—knew that Johns was ignorant of Kimlin’s insolvency,—and yet, by his representations, he induced Johns to part with his property and deliver its possession to him for Kimlin, and to accept a worthless check in payment therefor. Under such circumstances, Johns had a right to rely upon Endsley’s statement that the check was good, and would bS paid, and to act upon it as he did.

Finding no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Commissioners of Havana Township Drainage District No. 1 v. J. F. Kelsey.

      Filed at Springfield March 23, 1887.

      1. Appeal—/rom drainage assessments—-from county court to Supreme Court. An appeal lies to this court from the judgment of the county court, in a proceeding to confirm a special assessment made by a township drainage district under the act of 1885.
    2. Appeal bond — whether required—in drainage assessment cases. A township drainage district, under the act of 1885, is a municipal corporation, within the meaning of section 72, chapter 110, Starr & Curtis’ Statutes, giving a right to prosecute appeals and wilts of error without giving a bond.
    3. Drainage law—special assessments—benefits as the proper basis— and herein, of a second or further assessment. Under the constitutional provision relating to drainage, a special assessment can only be made on property benefited by the proposed improvement. Benefits to be received are essential elements to sustain a special assessment, and without benefits it can not be imposed, and it must not exceed the benefits to be derived by the proposed improvement.
    4. The drainage commissioners are not confined to one assessment, but, under the Drainage act, if the first assessment does not prove sufficient to complete the proposed improvement, an additional one may be ordered. In making a second or third assessment, however, the previous assessments should be considered, and in no case should the aggregate amount of all exceed the benefits to the lands assessed. This has no reference to assessments made after -the completion of the improvement to keep the same in proper repair.
    Appeal from the County Court of Mason county; the Hon. H. C. Burnham, Judge, presiding.

      Mr. B. S. Prettyman, and Mr. S. A. Murdock, for the appellant.
    Mr. E. A. Wallace, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Mason county, refusing to confirm an assessment made by the Havana Township Drainage District No. 1, under the act of June 27, 1885.

The act under which the proceeding was instituted does not provide for an appeal from the decision of the county court, and it is insisted that an appeal does not lie. The position might be sustained if the right of appeal depended alone upon the provisions of the Drainage act. Such, however, is not the case. Section 241, chapter 37, (Starr & Curtis’ Stat.) p. 729, in clear and express terms provides for an appeal from the decision of the county court, in a case of this character. The section provides: “Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court, to the Supreme Court or Appellate Court, in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, ” etc. Here, the drainage commissioners levied a special assessment on the lands of the district, and filed a special assessment roll with the town clerk, under the provisions of section 26 of the Drainage act. An appeal was taken to the county court, under section 27 of the act. The question presented by the appeal was, whether the assessment should be confirmed, modified, or set aside. Thus, the proceeding in the county court was one for the confirmation of a special assessment, within the meaning of the section of the statute, supra, and must be controlled by it.

It is also insisted, that the appeal should be dismissed because no bond was filed. Section 72, chapter 110, (Starr & Curtis’ Stat.) p. 1835, provides, that “the State, counties, cities, villages, towns, school districts, and all other municipal corporations, may appeal or prosecute a writ of error without bond. ” We shall not stop to elaborate the powers conferred upon a drainage district by the act of 1885, but an examination of these powers, which embraces the important one of raising money by special assessment, are of such a character as to authorize the corporation to be classed or known as a municipal corporation, within the meaning of the statute, which authorizes certain corporations to appeal without bond. The motion to dismiss the appeal will be denied.

We now come to the merits of the case. It appears from an examination of the record, that the Havana Township Drainage District No. 1, was organized October 15, 1883, under what was known as the Drainage act of 1879. On November 7, 1883, the drainage commissioners levied an assessment on all the lands of the district, amounting to the sum of $4190.40, which was supposed to be a sum amply sufficient to make the improvement contemplated at the time the district was organized. In making the assessment, appellee’s lands were assessed $468, which was paid. Indeed, almost the entire assessment was collected. At the time the district was organized, the cost of the drains and ditches to be constructed, as estimated, would not exceed $4000; but when the money assessed upon the lands of the district had been collected and expended, it was found that the work was not completed,—that the construction" of a half mile of open ditch, running up the railroad, through the Kelsey land, was needed. In order to meet this supposed needed improvement, the commissioners, on the 10th day of October, 1885, made another assessment on the lands in the district, amounting to $2464, $268 of which was assessed upon the lands of appellee. The assessment roll having been filed in the office of the town clerk, appellee, and some twelve or thirteen other land owners, took an appeal to the county court, where, on a hearing, the court found, from the evidence, that the assessment levied upon appellee’s lands exceeded the benefits to the full amount of the sum so assessed thereon,—that the amount of the prior assessment, which was first paid by appellee, was equal to all benefits to said lands, and that the present assessment is wholly in excess of the benefits to said lands by the proposed drainage. The second assessment was, therefore, vacated, and set aside by the court.

There is, as is usual in such cases, some' conflict in the evidence in regard to the extent of benefits arising to the lands from the improvement; but from a careful examination of all the evidence introduced on the hearing, we are of opinion that it preponderates in favor of the finding of the court that the first assessment equaled the benefits which lands in the district will receive from the construction of the improvement. Under such circumstances, had the commissioners authority to make the second assessment,—in other words, can the land owner be required to pay more, under the head of a special assessment, than his land may be benefited ? If he can, to what extent ? May assessment follow assessment, until the entire value of the land may be appropriated to improvements ? These are serious questions, which are far-reaching in their character, and their consequences should not be lost sight of in placing a judicial construction upon them.

Section 31, of article 4, of the constitution, under which the Drainage act was passed, is as follows: “The General Assembly may pass laws permitting the owners of land to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and keep in repair all drains, ditches and levees heretofore constructed under the law of this State, by special assessment upon the property benefited thereby. ”

We think it is plain, that under this provision of the constitution a special assessment can only be made on property benefited by the proposed improvement; that benefits to be received are essential elements to sustain a special assessment; that the absence of benefits excludes the burdens imposed on property by special assessment. This principle,—that assessments shall be based on benefits,—upon examination, will be found to be engrafted in the Drainage act of 1885. Section 26 provides: “The commissioners, by resolution, shall order such amount of money to be raised by special assessment upon the lands of the district, as may be necessary, and such amount shall be apportioned among the several tracts, in the name of the owner, when knowm, according to acreage of each, and its figure of classification in the graduated scale, so that each tract may bear its burden in proportion to benefits. ” The section further provides the form of the tax list, and that it shall be filed with the town clerk. This list may be regarded as a levy of the special assessment on the land. Following this section is section 27, which authorizes the land owner to appeal from the assessment thus made, to the county court. But, says the section, “the appeal shall be upon the ground, only, that such tax is a greater amount than the benefits to accrue to the land in question by the proposed drainage. ” The section further declares: “If the court finds that the tax exceeds the benefits to accrue, the court shall modify the same, so as to make it equal to the benefits.”

What was intended by the language we have quoted from section 27 ? The answer seems manifest: that benefits should always be considered in making an assessment, and that the assessment should not exceed the benefits to be derived from the improvement. Indeed, any other construction of the constitution and the statute would leave the land owner at the mercy of the drainage corporation; and if benefits are to be-disregarded, assessment might follow assessment, until they would exceed the value of the land, and the owner’s property might thus be confiscated and taken from him for supposed improvements. We can not give the law a construction which might lead to such dangerous results. We do not think that the' drainage commissioners are confined to one assessment, but, under the Drainage act, if the first assessment does not prove sufficient to complete the proposed improvement, an additional one may be ordered. But in making a second or third assessment, the previous assessments should be considered, and in no ease should the aggregate amount of all exceed the benefits to the lands assessed. This we regard as a reasonable construction of the law,—one which may enable the improvement to be make, and at the same time afford proper protection to the land owner. What we have said, however, has no bearing on an assessment which may be made, after the improvement has been completed, for repairs, rendered necessary to keep the improvement in proper repair.

' Reference has been made, in the argument, to Morrell v. Union Drainage District, 118 Ill. 140,—a case which arose under the act of 1879. In that case, however, there was no evidence that the assessments exceeded the benefits, as is the case here. That, too, was a bill in equity, and the main ground of the decision rests on the fact that the complainants in the bill had a remedy at law, and hence could not invoke the aid of a court of equity.

In this case, in view of the evidence introduced on the hearing in the county court, we regard the judgment correct, and it will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Hugh Martin et al. v. Edgar D. Swift.

      Filed at Ottawa May 12, 1887.

      1. Meohanio’s men—giving bond, as operating to discharge lien of sub-contractor—time of filing, and, effect thereof, etc. The bond for the discharge of sub-contractors’ liens, provided for in section 43 of the Lien law, may be filed at any time after the making of the contract, even after suit brought to enforce such lien. But the filing of such bond after suit, will not entitle the owner or principal contractor to have the suit dismissed. In such case, the bond merely takes the place of the lien as a security.
    2. Same—proceedings after bond filed— declaring a lien—personal judgment. The suit to enforce the lien of the sub-contractor may still be properly prosecuted after the giving and approval of such bond, to its final conclusion, for the purpose of fixing the amounts due, in aid of the enforcement of, the bond, and determining the sum due under the bond.
    3. When the bond has been filed, however, while the court may still ascertain and declare the sum due the sub-contractor, it is error to render judgment in personam, for the same, or to declare it a lien on the premises. A decree in personam is not authorized except where a lien is declared, and there is a deficiency after sale of the subject of the lien.
    4. Assignment oe erbob—by whom. Where the court, in a proceeding to enforce a sub-contractor’s lien, after bond filed, which operates to discharge the lien, still decrees a lien on the property in favor of a sub-contractor, the error will be such as affects both the principal contractor and the owner of the property, and the contractor alone may assign such decree for error.
    5. Practice—reversal of decree in whole or in part. In a proceeding to enforce the lien of a sub-contractor, after the hearing, and before decree, the principal contractor and owner of the building gave the bond authorized in section 43 of the Lien act, and asked a dismissal of the suit, which was denied, and the court found the sum due the plaintiff, and by the decree made it a lien on the premises. The Appellate Court held that the motion to dismiss was properly overruled, and that it was error to decree a lien, and reversed the decree: Held, that the judgment of the Appellate Court was correct, except as to the reversal of the entire decree, as it did not follow, from the finding of the error, that the decree was erroneous in finding the amount due.
    6. Statute—construction. Where the language of a statute is plain and unambiguous there is no room for construction, and the words used must have their natural meaning, unless some absurd or injurious consequence will result which was not foreseen by the legislature.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Edgar D. Swift was the contractor for building three houses, one for Julia A. Slater, one for John W. Moore, and one for Stewart L. Moore. Martin & Co. were sub-contractors, and furnished materials for the construction of each building. Not having received their pay from Swift, Martin & Co. served the notice required in such case, on each of the owners of the premises, and afterwards filed their petition" in each of the cases, to establish their mechanic’s liens. Answers were filed in each case, and when the cases came on for hearing, they were, by stipulation, practically heard together; and though separate decrees were entered by agreement, one certificate of evidence entitled in all the causes was signed, and they were all taken to the Appellate Court on one record. After the causes had been heard by the trial court, but before the entering of any final decrees therein, Swift, the original contractor, filed his petition in each of the cases, setting forth that he had entered into and filed the bond provided for in section 42 of chapter 82 of the Revised Statutes, entitled “Liens,” and the petitions prayed that the court proceed no further, but dismiss each suit at the defendant Swift’s costs. A demurrer was filed by the Martins to each petition, and was sustained by the court, and thereupon the court rendered in favor of Martin & Co., in each case, a decree in personam against Swift, and against the owners, for a lien to the amount (naming it) that remained due and unpaid by the owners upon each contract. Swift alone appealed from the decrees to the Appellate Court for the First District, and that court reversed the decrees and remanded the causes. Afterwards, on motion of Martin & Co., the remanding part of the order was stricken out, and they took an appeal to this court from the judgment of the Appellate Court.

      Mr. Joseph B. Leake, for the appellants.
    Mr. S. E. Dale, and Mr. F. W. Becker, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

We are of opinion the demurrer was rightly sustained to the petition to proceed no further in the suits, but to dismiss them. The statute relating to liens provides for a mechanic’s lien in favor of a sub-contractor, as well as in favor of the original contractor. Section 42 of the act is as follows: “Upon entering into a contract to do any work or furnish materials for which a lien might accrue, under section 1 of this act, if the contractor will enter into a bond with the owner, for the use of all persons who may do work or furnish materials pursuant to such contract, conditioned for the payment of all just claims for such work or materials as they become due, (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such surety as shall be approved by the judge of the circuit court, or a master in chancery of said court,) and shall file the same in the office of the clerk of said court, then no lien-shall attach in favor of such sub-contractor, mechanic or other person. ” Section 43 is: “A like bond may be made and filed as provided in the foregoing section, at any time after the making of such contract, and shall have the effect to discharge all such liens as shall have accrued before the filing thereof, and to prevent the accruing of any such liens thereafter. ”

It is insisted that the bond provided for in this 43d section should be made and filed before the institution of a suit to enforce the lien. But that certainly is not the reading of the section. It says, plainly, the bond may be made and filed at any time after the making of the contract. There is no ambiguity here, and the words used must have their natural meaning, unless some absurd or injurious consequence would result which the legislature manifestly could not have intended. There is nothing of that sort here. The rule is, that if the statute is plain and unambiguous, there is no room for construction,—that it is not allowable to interpret what has no need of interpretation. Sedgwick on Stat. and Const. Law, 231, 227.

If it were the consequence of giving the bonds that there must be dismissal of the suits, and all that had been done in them become of no effect, to avoid such an inconvenient result there might be some justification for the construction claimed, that the bond should be filed before suit brought for enforcement of the lien. There had been, here, a protracted litigation over the amounts which were due. There was a receipt in the case giving rise to a severe contest as to its forgery. Many witnesses had been examined on both sides, a large amount of time consumed, and large expenditures incurred. The trial had been had and concluded, but- the decision not announced. That all this should have been in vain, and go for nothing, would be a most injurious result. We do not think that was a necessary result. The suit was instituted to enforce a security on real estate,—a lien. In place of this, there became substituted another security,—the bond. To the enforcement of either security, there was necessity for determination of the same question of the amounts due.

The inquiry in that respect, which had been prosecuted to enforce the security of the lien, we think, might, after the giving of the bonds, be continued in its prosecution to the end, for the purpose of fixing the amounts due in aid of the enforcement of the security of the bond, when that should be sought, so that when suit came to be brought upon the bond the amounts due would have already been ascertained and declared, and there would not be need, in this respect, to go over again, and relitigate anew what had been litigated to such an extent in the lien suit before the bond was filed. We think the court did right in refusing to dismiss the suits, and in proceeding to find and declare the amounts due, but that there was error in rending a decree in personam, and in decreeing a lien. The proceeding to establish a mechanic’s lien is a statutory one, and must be governed by the provisions of the statute. The law does not contemplate that in such a proceeding there shall be any decree in personam, except where there has been establishment of the lien, and decree for the deficiency after sale made of the subject of the lien. The statute is explicit, that the bond shall have the effect to discharge the lien, and the decrees should have allowed' it the effect which the statute declares it shall have.

It is said, that the lien only concerns the owners; that they have not appealed, and that Swift, the contractor, can not be heard to make objection on account of the decree of the lien, because he is not prejudiced by the lien. We think the discharge of the lien is for the benefit of the contractor, as well as the owner. While the lien remains, the fund due the contractor is locked up,—held in the hands of the owner, to be paid to the sub-contractor, if found entitled to it. It is the contractor’s interest that the fund be not so held; that it shall be free to be paid over to him, and to admit of any dealing between himself and the owner which they may desire to have, unembarrassed by the lien. We deem Swift to have sufficient interest in the matter of decreeing a lien, to entitle him to make objection on account of it.

We agree with the Appellate Court that there was no error' in refusing to dismiss the suits, and that there was error in decreeing a lien. In its opinion, which we have before us, that court only considers and passes upon these two assignments of error, saying it was unnecessary to consider other errors assigned, and that the decrees must be reversed, and gives judgment accordingly. It did not follow, from the error in decreeing a lien, that the decrees must be reversed entirely, but only that they should be reversed in part, in so far as they decreed liens. The other errors assigned, among which is one as to the amounts found due, were never, in fact, considered or passed upon by that court, and yet it, in effect, sustains that assignment of error by reversing the decrees wholly. Had the cases gone back to the trial court, there would had to have been re-trial there of the issues as to the amounts due, when there had been no determination by the court of review that the former finding on those issues was erroneous. And as it now stands, there is no finding as to amounts due, and in a suit upon the bond there would have to be the same re-trial of those issues.

In order to a reversal of the decrees entirely, we think the other errors assigned, or at least the one as to the amounts due, should have been considered and passed upon by the Appellate Court.

The judgment of that court will be reversed, and the causes remanded for further proceedings there, conformable to this opinion.

Judgment reversed.


text:
    Charles F. S. G. Hazeltine v. Jeremiah J. Fourney.

      Filed at Ottawa May 12, 1887.

      Trust—when enforced. A husband had real estate conveyed to his wife, to be held for his use, in case he should survive her; and if he should die first, the property was to belong to her,—she at the same time executing to him a writing, showing that she held the same in trust. Shortly before her death the wife conveyed the property to a third party, in trust for her infant son by a former marriage. It was held, that a court of equity would set aside the deed made by her in violation of the trust, and vest the title in the husband.
    Writ oe Error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      Mr. H. M. Pierce, for the plaintiff in error.
    Mr. Arnold Tripp, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Jeremiah J. Fourney, in the circuit court of Cook county, against Charles F. S. G. Hazeltine, to vacate a trust deed executed by Sarah Fourney, the wife of complainant, on the 9th day of May, 1881, to one James McLaughlin, and to enforce a trust agreement made between the complainant and the said Sarah Fourney, on the 19th day of October, 1876, under which the property involved was, as specified in the contract, to be conveyed to the complainant. On the hearing, on the pleadings and evidence, a decree was rendered in favor of the complainant, as prayed for in the bill, to reverse which this writ of error was sued out by the defendant.

At the time the decree was rendered, the defendant was a minor, and it is insisted in the argument that the evidence is not sufficient to sustain the decree.

It appears from the evidence, that the complainant purchased the propert) in dispute, and obtained a deed on the 22d day of November, 1870. On the 19th day of October, 1876, the complainant, and his wife, Sarah Fourney, conveyed the property to Ernst Waer, and on the same day Ernst Waer conveyed to Sarah Fourney. At the time these two deeds were executed, a contract in writing was prepared and executed by Sarah Fourney, and delivered to the complainant, which showed the terms and conditions upon which she held the legal title to the property, and the disposition which was to be made of the title in the future. There is ample evidence in the record that the contract was executed and delivered to the complainant. Waer, who was the medium through which the title passed from the complainant to his wife, testified that the contract was made out at the same time the deeds were executed; that it was read, and signed by-Sarah Fourney. Several other witnesses testify that Sarah Fourney, on different occasions, told them that she had made the contract, which showed the rights of her husband in the property. But the contract has been lost, or taken from the possession of the complainant, and could not be produced on the trial, and the only question of dispute is as to the contents of the contract. Waer, who was present when the contract was made, and heard it read, states, in substance, that it provided that if Sarah Fourney died before her husband, then the property was to go to him; if, however, he died first, then she was to hold it. Owen Doyle testified that Mrs. Fourney told him that they had fixed the property in such a manner that she was to have it while she lived, and if she died before her husband, the property was to be transferred to him. Henry Frederick testified that Mrs. Fourney stated to him, that they had made an agreement between themselves, “If I should die first, the property shall be his; and if he should die first, the property is mine. ”

It will not be necessary to refer to other evidence as to the contents of the agreement; but after a careful consideration of all the evidence, we think it is manifest that Mrs. Fourney paid nothing for the land; that her husband caused the conveyance to be made to her without consideration; and that she held the legal title in trust, and in case of her death before the husband, the property was to be reconveyed to him. The trust agreement was manifested by a writing, and no reason has been shown why it should not be enforced. Mrs. Fourney died May 12,1881, leaving plaintiff in error, a son by a former marriage, an only child. Three days before her death she made a deed purporting to convey the property in question to James McLaughlin, in trust for her son, the plaintiff in error. This deed was made in violation of the agreement with her husband, under which she held the title to the property, and can not be sustained. Under the contract, she had no right to settle the property upon any person, but in case her husband survived her, it belonged to him. In view of the contract, the deed was properly set aside, and the decree vesting the title in complainant was fully warranted by the evidence.

The decree will therefore be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scott

text:
    Leverett B. Sidway v. The South Park Commissioners.

      Filed at Ottawa May 12, 1887.

      Offices—right to compensation for services beyond his salary. The South Park Commissioners directed their auditor, whose salary for his services as such was fixed at $3000, (the highest amount allowed by law,) to procure a loan of $100,000 for their use, which he did. There was no promise to pay him anything for this service, either express or implied, at the time or before it was rendered. He claimed commissions on the loan, with interest, and brought suit for the same: Held, that he was not entitled to anything for such service beyond his fixed salary as auditor.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Bogers, Judge, presiding.
    Messrs. Roberts & Hutchinson, for the appellant:
    The service was not within those devolved upon him as an officer, and he was therefore entitled to pay for the same. Cheeney v. Railway Co. 68 Ill. 576; Railway Co. v. Cheeney, 87 id. 446; Holden v. Railroad Co. 71 id. 106; Gridley v. Raihuay Co. 71 id. 206.
    Mr. Joseph F. Bonfield, for the appellee :
    The South Park Commissioners is a municipal corporation. People v. Salomon, 51 Ill. 52.

      The commission had no power to pay appellant for the services rendered. He was at that time the auditor of that body, receiving a salary for his services, of $3000 per annum. Having been voted, and having received, this salary for his services, to the full limit of the authority conferred by the act, any attempt to increase that compensation would be an act ultra vires the commission, and void.
    The appellant was directed, by appellee, to perform this service as auditor, and not in any other capacity. “Resolved, That L. B. Sidway, auditor, be and he is instructed to negotiate a loan of $100,000, on such terms as he may think to the best interest of the commission, and that certificates of indebtedness for that amount be issued to the parties from whom the loan is made. ”

    The power to vote this compensation is also expressly prohibited by the constitution of the State. “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term of office.” Const, art. 9, sec. 11.
    The claim of appellant is in violation of the constitution. “The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or contract made.” Const, art. 4, sec. 19; LaSalle v. Blanchard, 1 Bradw. 635.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This suit was brought by Leverett B. Sidway, against the South Park Commissioners, to recover certain commissions alleged to be due him for procuring a loan of $100,000 for defendants. At the time plaintiff procured the loan he was himself one of the park commissioners, and had been appointed, by the board, auditor of that body, and was acting in that capacity. His salary, as auditor, was fixed at $3000, and section 2 of the Park act provides, the auditor of the board shall receive a salary not exceeding $3000. It seems, the board, by resolution, instructed plaintiff, then auditor, to negotiate the loan required, on such terms as he might think to the best interests of the commissioners. It was under the authority of that resolution plaintiff secured the loan for defendants for which he now seeks to recover a compensation in the nature of commissions. By agreement, the cause was tried by the court without a jury, and the court found the issues for defendants. The' motion made for a new trial was overruled, and "judgment rendered for defendants, to which ruling of the court plaintiff excepted. The judgment of the circuit court was affirmed by the Appellate Court for the First District, and plaintiff brings the case to this court on his further appeal.

No questions of law were raised by plaintiff at the trial in the circuit court, by propositions submitted 'to the court' to be held or refused to be law, as applicable to the facts, or otherwise. It is apparent, then, that no questions of law can be considered in this court, other than plaintiff’s right, as a matter of law, to recover on the facts, as the same were found by the trial and Appellate Courts. It seems the Appellate Court found as a fact in the case, “that the services for which this suit was brought, were rendered without any promise on the part of the appellee, before or at the time the services were rendered, either expressed or implied, to pay appellant for said services, beyond the compensation received by him as auditor. ” As has been seen, plaintiff, at the time, was himself a member of the board of commissioners, and was its auditor, and conceding the facts to be as the Appellate Court has found them to be, the law is well settled there could be no recovery, and the judgment of the Appellate Court must Be affirmed. Cheeney v. Lafayette, Bloomington and Mississippi Ry. Co. 68 Ill. 570; Holder v. Lafayette, Bloomington and Mississippi Ry. Co. 71 id. 106, and other cases in this court.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Michael Reich v. Catherine Berdel.

      Filed at Ottawa May 12, 1887.

    1. Evidence—duplicate patent for school lands. Section 97, chapter 122, of the Revised Stautes of 1874, which provides that “purchasers of common school lands, and their heirs and assigns, may obtain duplicate copies” of patents, does not restrict the use of such duplicates as evidence, to the purchaser, or his heirs and assigns. When issued, they are made evidence the same as the original.
    2. The preliminary proof of the loss of the original, required by the section, is intended alone for the Auditor. It is therefore immaterial by what person the affidavit is made upon which the officer acts. It is enough that he finds the proof sufficient, and acts upon it.
    3. Same—secondary evidence—preliminary proof. There is no error in the exclusion of parol evidence tending to prove the execution of a deed of trust under which a sale was claimed, when no proper foundation is laid by proof of loss and search for the original.
    4. Dower— basis of the right—seizin and death of the husband. In a proceeding by a widow for dower, proof of the seizin of her deceased husband at some time when the petitioner was his wife, and of his subsequent death, makes a prima facie case in her favor.
    5. Same—release—evidence. The proof of the existence of a deed made by the husband in his lifetime, without proof of its execution by his wife, will not be sufficient to show a release of the wife’s dower in the land, when she denies its execution by her.
    6. Same—improvements. In a suit for dower, if the defendant has made improvements on the land in which the petitioner is not entitled to dower, he should show that fact. If he does not, he can not complain that no mention is made of improvements in the commissioners’ report.
    Writ of Error to the Circuit Court of Cook county; the Hon. Jesse J. Phillips, Judge, presiding. .
    Mr. Jesse Cox, and Mr. William M. Stanley, for the plaintiff in error:
    Only purchasers of school land and their “heirs and assigns, ” are entitled to a duplicate patent. But a dowress is neither. Hurd’s Stat. 1885, p. 1122, sec. 97; Gauch v. Life Ins. Co. 88 Ill. 251.
    Whatever right defendant in error had to dower in the land, was waived by her joining in the trust deed of her husband, in 1858, to Henry Greenbaum, and the trustee’s deed made on a sale thereunder.
    The allotment of dower was of one-third of all the property, the effect of which was to give her one-third of all .the improvements made upon the land, which was error. Summers v. Babb, 13 Ill. 483.
    Messrs. Blum & Blum, for the defendant in error:
    The right of dower can only be barred by the voluntary act of the wife, in the mode pointed out by the statute. (Atkins v. Merrell, 39 Ill. 63.) This being the law, it was incumbent upon plaintiff in error to establish that defendant in error did release the same.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill for dower, by the defendant in error, as the widow of Nicholas Berdel, deceased, against the plaintiff in error. The decree was in conformity with the prayer of the bill.

Four objections to the decree are urged in argument:

First—A duplicate copy of a patent issued by the Governor of this State to Nicholas Berdel, on the 6th of September, 1851, for a'larger tract of land, which includes the property in controversy, was read in evidence over appellant’s objection,—and this was the only evidence of title in Nicholas Berdel. It appears from this copy that the land was school land, and that the patent was issued pursuant to a previous sale thereof by the school commissioner of Cook county. The copy was issued by the Auditor of State on the 25th of February, 1885, and it is objected that it is insufficient evidence to prove that for which it was offered, because only “heirs or assigns” of Nicholas Berdel are entitled to obtain a duplicate copy of the patent, and his widow is neither “heir” nor “assign.” The objection, in our opinion, is not tenable. The 97th section of chapter 122 (Rev. Stat. 1874,) provides, that “purchasers of common school lands, and their heirs and assigns, may obtain duplicate copies of their certificates of purchase and of patents, upon filing affidavit with the county superintendent in respect to certificates, and with the Auditor in respect to patents, proving the loss or destruction of the original; and such copies shall have all the force and effect of the originals.” Plainly, the preliminary proof here required is, simply, for the county superintendent, when certificates of purchase are lost, and for the Auditor, when patents are lost, to cause them to act and issue the duplicate copies, and in nowise affects the question of the admissibility or sufficiency of the duplicate copies as evidence, for such copies, when issued, “shall have all the forcetand effect of the originals.” There is nothing in the statute, nor in reason, so far as we are able to perceive, that limits the persons in behalf of whom the duplicate copies may be used as evidence, and it is therefore now unimportant to inquire by what individual the affidavit upon which the Auditor acted was made. It is enough that he found it to be sufficient, and acted upon it, and his finding in that respect is not reviewable in this proceeding.

Second—It is objected, that as to one of the lots in question it is not shown that plaintiff in error claimed title through Nicholas Berdel; but since the plaintiff in error has not shown title paramount to that of Nicholas Berdel, this proof was unnecessary. Proof of the seizin of Nicholas Berdel at some time when the defendant in error was his wife, and his subsequent death, makes a prima facie case in favor of the defendant in error. 4 Kent’s Com. (8th ed.) 35, *36.

Third—Evidence was offered before the master in chancery tending to prove the execution of a deed of trust of this prqpei'ty by Nicholas Berdel to Henry Greenbaum, trustee, to secure a debt to Elias Greenbaum, a sale thereunder, and conveyances of the title to plaintiff in error. Neither the original nor a copy of this deed was produced. The master held the evidence inadmissible, because the proper foundation for the introduction of secondary evidence was not laid, and this ruling was affirmed by the court below. In this there was clearly no error. The deed was last in the possession of Elias Greenbaum, and, from aught that appears in evidence, it may be there yet. He is not shown to have made any search for it. But even if the evidence offered were admissible, we can not say that there was error in not holding it to be sufficient to prove that the defendant in error released her dower pursuant to the statute in force at the date of the pretended execution of this deed of trust. The defendant in error testified that she never signed such a deed, and no one testifies to having seen her sign it, or even to having seen her signature, and an official acknowledgment of the deed by her before a competent officer. The evidence of the habits of the Greenbaums, and of Jones, to which they respectively testified, proves nothing; and the remarks of the defendant in error, testified to by Burcky and Soldán, are unsatisfactory and inconclusive. The burden was upon the plaintiff in error to overcome the denial of the defendant in error.

Fourth—It is objected that the report of the commissioners makes no mention of the improvements. But there is nothing in the record to show that there were, in fact, improvements. If plaintiff in error has made improvements in which defendant in error is not entitled to dower, this is matter of defence which should have been alleged and proved.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Julia Ehrler v. Bartholomæus Braun.

      Filed at Ottawa May 12, 1887.

    Forged instrument—bona fide holder. The fact that the purchaser of a forged note is a bona fide holder of the same for value, will not avail him anything, and he can not enforce its payment of the person who appears as the maker, unless the latter has so acted in respect to the same as to estop him from setting up the forgery as a defence.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Arnold Tripp, for the appellant:
    A person whose name is attached to a note as security, without authority, becomes liable', if, on inspection, he admits the signature to be his. Hefner v. Vandolah, 62 Ill. 480; Hefner v. Dawson, 63 id. 403; Casco Bank v. Keene, 53 id. 103; Rudd v. Matthews, 79 Ky. 479.
    As to a ratification or adoption of a forged signature, see Forsyth v. Day, 46 Ill. 191; Kingsley v. Vernon, 4 Sund. 361; Livingston v. Wiler, 32 Ill. 397.
    Mr. Simeon Straus, for the appellee, denied the contract for extension of the note was ever signed by Braun, but insisted, "that if he ever signed the same it created no estoppel. To have that effect, it must appear—
    That the other party must have been induced to act upon it. Direct v. Eilert, 13 Bradw. 99; People v. Brown, 67 Ill. 455; Ball v. Horton, 85 id. 159.
    That the representation thereby made must have been made with a full knowledge of the facts. Dorlarque v. Cross,
      71 Ill. 380; Davidson v. Young, 38 id. 153; Kerr v. Sharp, 83 id. 199; Reynolds v. Ferree, 86 id. 570.
    If the element of fraud is wanting, there is no estoppel. Flower v. Elwood, 66 Ill. 438.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Bartholamseus Braun, on the 17th day of June, 1885, exhibited his bill of complaint in the Superior Court of Cook county, against Julia Ehrler, Frederick Lipp, Frederick Freudenberg and Theodore H. Schintz, wherein it is charged, in substance, that complainant, Braun, on the 4th day of June, 1883, entered into an agreement with Randolph Becker for the purchase of a certain lot in Chicago for $5200,—$100 of which was paid on the day of the agreement, and $3100 on the 16th of the same month, at which time complainant received from Becker a warranty deed for the premises; that at the same time he executed to Becker two promissory notes, each for the sum of $1000, payable in one and two years, respectively, at the office of said Freudenberg, with interest thereon at the rate of seven per cent, payable half-yearly; that to secure these notes, complainant, on that day, and as part of the same transaction, executed and delivered to Becker a trust deed upon the purchased premises, wherein Freudenberg is named as trustee, and in the event of his death, resignation, removal, or other inability to act, Theodore H. Schintz is named as successor in trust; that said trust deed was duly filed for record, in the proper office, on the same day; that about the 4th of December, 1883, Freudenberg purchased said notes of Becker, and took an assignment thereof in blank; that complainant, on the 11th of December, 1883, paid the semi-annual interest on said notes at Freudenberg’s office; that on June 16, 1884, complainant paid to Freudenberg the principal and interest on the note maturing that day, and also the interest on the other; that on December 16, 1884, complainant paid to Freudenberg the interest then due on the remaining note, and $500 of the principal, which payment was at the time indorsed upon the back of the note; that about the 31st of May, 1885, Freudenberg absconded from Chicago, charged with the commission of numerous crimes and offences; that on. or about the éth of June, 1885, some one, unknown to conrplainant, presented to him for payment, two notes for $1000, of the same date and tenor of the two notes given by complainant to Becker, and purporting to be signed by appellee, both of which purport to have been indorsed by Becker to Julia Ehrler, and on the back of the one first maturing there is also an indorsement, which purports to have been signed by complainant, extending the time of payment one year from its maturity; that said notes, and all indorsements. thereon,, are mere forgeries, committed by Freudenberg, or some one else unknown to complainant; that the unknown party thus presenting said spurious and forged notes, exhibited therewith the genuine trust deed executed by complainant to secure his notes to Becker, as above stated; that on or about June 11, 1885, defendant Lipp exhibited to him his outstanding note to Becker, with the credit of $500 indorsed thereon, as heretofore stated, and also what purported to be a deed of trust securing it, but which in fact was a forgery; that Julia Ehrler now holds the two forged notes and the genuine trust deed, while Lipp holds the genuine note with forged trust deed; that complainant is ready and -willing to pay the balance of $500 on the note in Lipp’s hands to him, or such person as the court finds entitled thereto. Prayer that upon the payment by complainant of the $500 balance on the note held by Lipp, all of the above mentioned instruments, forged and genuine, be brought into court and cancelled, and that Freudenberg, or his successor in trust, be compelled to execute to complainant a release of said deed of trust.

Julia Ehrler answered, denying the equities of the bill, and also filed a cross-bill, alleging that she purchased the notes held by her, from Freudenberg, paying a valuable consideration, without notice of any infirmity in or defence to them, and prays their payment be enforced by a foreclosure of the trust deed. Schintz answers, disclaiming all interest in the subject matter of the suit. Freudenberg made no defence, and Lipp submitted his claims to the court upon the case made by the bill. On the hearing, the Superior Court dismissed appellant’s cross-bill, found the facts as charged in the original bill, and rendered a decree in conformity with the prayer thereof. That decree has been affirmed by the Appellate Court for the First District, and the question to be determined on the present appeal is, whether the Appellate Court erred in affirming said decree. The answer to this question, of course, depends upon whether the evidence embodied in the record supports the decree.

That the notes held by the appellant, and the trust deed held by Lipp, are forgeries, we think is established by .the decided weight of evidence. So far, the case does not present the slightest difficulty. Conceding, then, as we must, that the notes in the hands of appellant are forgeries, it is very clear, the fact that she is a bona fide holder for value can not avail her anything, unless appellee has so acted in respect to them as to estop him from interposing their original infirmity as a defence,—and such, appellant insists, is the case.

Schintz,- through whom appellant purchased the two spurious notes, swbars positively, that after their purchase, and while in his possession, to-wit, on the 16th day of June, 1884, the very day the first note matured, appellee came to his office and procured from him an extension of the first note, which matured on that day, and that appellee attached his signature to such extension, in his presence. He also swears to appellee’s subsequently calling at his office and paying the accumulated interest on the two notes. There is also evidence tending to show that Freudenberg, from whom appellant purchased the notes, was, at the time of these alleged transactions .between appellee and Schintz, in good financial standing, and the claim of her counsel is, that if appellee had repudiated the notes as spurious when he first saw them, in June, 1884, instead of treating them as genuine, she might have indemnified herself against loss by proceeding at once against Freudenberg.

Two answers are made to this position: First, that the testimony of Schintz upon this branch of the case is not true,— that it is based upon a mistaken identity of appellee; and second, that conceding it to be true that appellee did actually apply for and obtain the extension of the first of these spurious notes, and subsequently pay interest on both of them, as testified to by Schintz, it was nevertheless done under an honest belief that they were genuine, and that this being the case, he is therefore not estopped from repudiating the transaction upon the discovery of the real facts.

In the view we take of the ease, it will not be necessary to consider the position last assumed. We think the first answer is the correct one, and it would therefore be useless to dis-' cuss the second. Appellee positively denies having ever seen Schintz, to know him, or having ever been to his office for any purpose until early in June, 1885,—long after the occurrences testified to by Schintz as having occurred. The testimony of appellee and Schintz is wholly irreconcilable. As witnesses, we discover nothing in the record to east a shadow of suspicion upon the honesty or integrity of either; and so far as we can see, both of them seem to be intelligent men. Of course, each of them has a strong motive in sustaining his own view and recollection of the matter. In this respect, Schintz has perhaps the advantage of appellee, but clearly not enough to have a controlling influence, so far as this court is concerned. On the other hand, the testimony of appellee, if untrue, is wholly inconsistent with his honesty, as well as some of the uncontroverted facts in the case. He could not have paid off the first genuine note, as he swears he did, and as is evidenced by his having the note in his possession, and yet, on the same day, if Schintz’s testimony is to be believed, have gone to Schintz and asked him for an extension of the first note. Such conduct can hardly be imputed to any sane man. That he did pay to Freudenberg the first of the genuine notes, on or about the date of its maturity, is not only positively sworn to by appellee, but there is nothing in the record to show the contrary, and to put the matter beyond all controversy, he brings the note itself intq court, and puts it in evidence on the hearing. It is obvious there were but two genuine notes, and no one knew this fact better than appellee; and having paid the first note at its maturity, there was no occasion for an extension. Indeed, there was nothing to extend. It would be absurd to say that he obtained the extension under a misapprehension as to its genuineness, and afterwards paid off and took up the true note without even, so much as calling on S chintz for an explanation of the matter. Sane men do not act in that way. We repeat, there is no way of explaining appellee’s testimony consistently with good faith and honesty, upon the hypothesis that Schintz’s evidence relating to this branch of the case is correct.

The case is, however, quite different so far as Schintz is concerned. He had bought these spurious notes for his client, the appellant, from Freudenberg,- an unscrupulous, dishonest man, whose interest it was to put off the day of reckoning as long as possible. While there is no direct evidence bearing upon the matter, it is not at all unlikely, that, with a view -of protecting himself from an early exposure, Freudenberg concocted and successfully carried into execution the scheme for extending the first note. As Schintz and Braun had never met, and were total strangers to each other, Freudenberg could easily have got some accomplished, unscrupulous person like himself to personate Braun in the transaction; and assuming that the person thus personating him was of the general appearance of Braun, it is by no means surprising that Schintz should still adhere to the opinion that Braun is the real person with whom the business was transacted.

There is other evidence disclosed by the record, having more or less bearing upon this matter, which, upon the whole, we think strengthens the case of appellee; yet we do not deem it necessary to enter upon a discussion of it, as it would lead to undesirable prolixity. Taking the most favorable view for appellant, the evidence is too evenly balanced upon the turning point in the case to warrant a reversal.

The judgment of the Appellate Court will therefore he affirmed.

Judgment affirmed.