text:
    Lewis B. Casner v. Mary C. Preston.

      Filed at Springfield March 26, 1884.

      1. Appear—review of controverted questions of fact. On the trial of an appeal from an order of the county court allowing a claim against an estate, the execution of the note sued on was denied under oath, and no consideration and failure of consideration, and a settlement of the claim, were set up in defence. The jury found the issues for the plaintiff, upon which judgment was rendered for the amount of the note, and this judgment was affirmed by the Appellate Court: Held, that the findings on the issues by the jury, and the findings by the Appellate Court, were conclusive on this court as to the disputed questions of fact.
    2. Married women—power to make binding contracts. Section 6, chapter 68, of the Revised Statutes of 1874, confers ample power on a married woman to enter into a contract with a person other than her husband, to remain with her family on his place, and allow him to make his home in the family, and give him such care and attention as he might require during his life, in consideration of his promise to pay her for the service.
    3. In this case, a feeble old bachelor, advanced in years, executed and delivered to a married woman a promissory note for $4000, payable six months after date, to induce her to remain in his house and make it a home for him, and to care for and nurse him during his life, which she agreed to do, and she performed the agreement without objection on the part of her husband. It was held, that the note was based on a sufficient consideration, and that had she failed to perform her agreement, or been prevented from doing so, that would have only gone to the consideration, but not to the validity, of the note.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Piatt county; the Hon. J. W. Wilkin, Judge, presiding.
    This was a claim filed by the appellee in the county court of Piatt county, at the October term, 1882, against the estate of Christopher Casner, deceased, founded on a note, a copy of which is given in the opinion of the court. The administrator denied the execution of the note, under oath, and pleaded the general issue, and that the note was without consideration. On a trial in the county court the jury found for the claimant, upon which the court rendered judgment. On appeal by the administrator, a trial was had before the court and a jury, resulting as in the county court.
    The evidence shows that in the spring of 1876, Christopher Casner, deceased, let the appellee and her husband into the possession of his dwelling house and two hundred acres of land, on condition that her husband, James Preston, should tend such portion of the land as they might agree upon, and that appellee should reside in such house, with her family, consisting of herself, her husband, and four children, and should permit Casner to make said house his home, and that she shoúld at all times thereafter make Casner comfortable therein, by her personal supervision, care and attention, in sickness as well as in health. It was alleged in appellee’s bill filed in another case, which was read in evidence in this case, that about March, 1880, she notified Casner that she was going to leave the place; that Casner was a bachelor, in advanced years and failing health, and about that time agreed with her that if she would remain with her family upon the place, and continue to make for him such a home and give him such care as she had before given him, so long as he should live, he would make her a deed for the two hundred acres of land within nine months from that time, and that appellee then agreed to such offer, and complied with her part of the contract until the death of said Casner, which occurred November 3, 1880. Appellee also introduced in evidence a letter, in the words and figures following:

      “October 18th.

    “I am feeling very poorly to-day, and in case I should not get well to make other arrangements for Mrs. Preston,—that I don’t speak to my brother, Lewis, concerning my request in my letter to him,—I give her this to hold and to show, should they try to cause her any trouble. I also give her her choice of taking the property or money. She wished the property in place of the money, but for fear they will cause her trouble, I give her my note for four thousand dollars ($4000) against me or my estate, and she is to be provided for first, before any of the land is divided. This I do for her for her kindness, and the care she has given me through my sickness. I feel it my duty and right to provide a home for her. She deserves to be amply rewarded for the care and nursing she gives me now. No one could do it better, and with more kindness, than she does. I also give her these things because she has promised to wait on me, and do all she can to make me comfortable, through my sickness. She has done so, and will still do all she can in making me comfortable. If my people refuse to give her the property, then they must pay the money. This is to be preserved if I don’t get well.
    C. Casner.”
    The defendant introduced in evidence from the files of the county court the account of James Preston, against the estate, for $1162.42, including a charge for boarding the deceased in 1877, 1878,1879, and up to November 3, 1880, amounting to $624.
    Messrs. Nelson & Carrius, and Messrs. Lodge & Huston, for the appellant.
    Messrs. Reed & Davidson, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee filed in the probate court of Piatt county, at the October term, 1882, a claim for allowance against the estate of Christopher Casner, amounting to $4000, with interest. The claim was evidenced by this instrument:

“Bement, Illinois, October 18, 1880.
“Six months after date I promise to pay M. C. Preston (4000) four thousand dollars, with six per cent interest from date.”

It was signed with the name of deceased. To it was attached this memorandum: “If I fail to deed to her the two hundred acres of land where she now lives, in her own name, as I have agreed to do, where the buildings and improvements are is hers. ” This memorandum was neither signed nor dated, but was below the note, and on the same paper. The administrator denied, under oath, the execution of the note, and filed a plea that it was without consideration; also, the plea of non-assumpsit, not sworn to,—to which replications were filed. There was a trial in the probate court, by the court and a jury, and the issues were found in favor of appellee. The administrator appealed the case to the circuit court, where, on a trial by the court and a jury, the same verdict and judgment were rendered. He thereupon removed the case, by appeal, to the Appellate Court, where, on a trial, the judgment of the circuit court was affirmed, and he appeals to this court, and urges a reversal.

The jury and the Appellate Court having found that deceased did make the note, and that there was a sufficient consideration, and that the note was not settled, as claimed by evidence admitted under the plea of the general issue, these findings are conclusive on us, the statute having forbidden this court from reviewing such facts.

But it is insisted that appellee, being a married woman, was incapable of entering into such a contract, and the case of Olney v. Howe, 89 Ill. 556, is referred to in support of the proposition. In that case the administratrix claimed under a written agreement with her mother, who was a married woman, and it was held that under the Married Woman’s law, as amended in 1869, she had no power to execute such a contract as' was in controversy in that case. It was there agreed that if the daughter should furnish the mother, who was a feme covert, with a home and support for life, the daughter should have certain promissory notes, the mother retaining the notes and to have the interest arising from them during her life. The notes were neither assigned nor delivered to the daughter. But this note and agreement were executed after the adoption of chapter 68 of the Revised Statutes of 1874, the 6th section of which authorizes a married woman to contract and incur liabilities, 'which may be enforced against her as if she were sole, and unmarried. The only expressed limitation is, that she shall not enter into partnership business without the consent of her husband. This provision of the law confers ample power on married women to enter into such a contract as this, especially so when not objected to by the husband.

It is insisted that a married woman, from the relation of husband and wife, is required to devote her labor, attention and care to her husband and family, and to hold, under even that section, that she may contract to support and devote her care and attention in nursing another person for life, is destructive of marital duties and obligations. Whatever the duty in case the husband objects to such a contract, in this case he, so far as can be learned from this record, made no objection. It is certainly true that no one else can interpose such an objection but the husband. The note was executed and delivered, and required nothing more to perfect its execution and validity. Unlike the case of Olney v. Howe, there was nothing more to be done to vest the legal title of the note in appellee. There the title, by the terms of the contract, was not to pass to the daughter till the death of the mother. It was held to be in the nature of a devise; but here the title vested in appellee on the delivery of the note. Nor did it matter in the least that a portion of her part of the contract still had to be performed. If she failed to perform the balance of her agreement, that would have gone to the consideration of the note, but not to its validity. This is the broad distinction between the two cases.

There is no complaint that the court erred in any of its rulings on the law, on the trial. It is true that it is assigned for error that the trial court erred in refusing appellant’s instructions; but that assignment of error is not noticed in appellant’s argument, and seems to have been abandoned.

The lower courts have found that appellee fully performed her part of the agreement, and deceased must have received the consideration for which he contracted and gave his note. Had appellee failed, refused, or had her husband prevented her from performing her part of the agreement before the death of the maker, then there would have been a failure of consideration to the extent of the unperformed portion of the contract. But that was not the case, as the lower courts have found. We do not hold that the husband did not have the power to compel appellee, at any time, to cease the performance of the agreement, or that she had the power to perform such a contract in despite of her husband’s objections. There seems to have been no objections by him in this case, and it must be inferred that his wife entered into and performed the agreement with the consent of the husband.

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

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Peoria, Decatur and Evansville Railway Company v. Mary A. Duggan.

      Filed at Springfield March 26, 1884.

    1. Attorneys’ Fees—in suits against railroad corporations—notice. The statute making a railway corporation liable to the owner of animals injured or killed on its track when it has failed to make and keep in repair fences, etc., and also for reasonable attorney’s fees, is notice to such corporation, when sued for such an injury, that such attorney’s fees will be claimed, and it is not necessary it should have any other notice.
    2. Same—when the liability accrues—and how the recovery may be had. The liability of a railway company for attorney’s fees in an action to recover for an injury to animals, growing out of its neglect to fence its track, etc., under the act of 1879, arises at the same instant with its liability for damages, and such fee may be assessed in the same suit with the damages, the law not favoring a multiplicity of actions.
    3. Same—constitutionality of the act. The act of 1879, making railway corporations liable for attorney’s fees in addition to the damage sustained by the owners of stock by the killing or injuring the same, through a neglect to fence their roads and keep the same in repair, is not open to the objection of being special legislation, in singling out one class of corporations alone. The statute may be upheld as being in the nature of a penalty for non-compliance with the duty of fencing, and as a police regulation, not only for the protection of animals, but for the public welfare, and as a measure for the safety of travel on railroads.
    4. As a police regulation for the promotion of the public safety in travel by railroads, the legislature may well require the fencing of such roads, and provide penalties for securing the performance of such requirement.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Stevens, Lee & Horton, for the appellant.
    Messrs. Meeker & Smyser, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This action was commenced before a justice of the peace, to recover the value of five hogs alleged to have been killed by a train on the railroad of the defendant. The case was appealed to the circuit court, and there tried before the court and a jury, resulting in a verdict for the plaintiff for $55, upon which judgment was rendered, and on appeal to the Appellate Court for the Third District it was affirmed, and an appeal taken to this court, the requisite certificate having been made.

The suit was brought under the act of the General Assembly relating to fencing by railroad companies, approved May 29, 1879. (Laws 1879, 224, 225.) The act imposes on all railroad companies the duty of fencing their tracks, maintaining cattle-guards, etc., and then uses the following language: “And when such fences or cattle-guards are not made as aforesaid, or when such fences or cattle-guards are not kept in good repair, such railroad corporation shall be liable for all damages which may be done by agents, engines or cars of such corporation to such cattle, horses, sheep, hogs, or other stock thereon, and reasonable attorney’s fees, in any court wherein such suit is brought for such damages, or to which the same may be appealed, ” etc.

On the trial in the circuit court, the court, against the objection of defendant, admitted evidence that $15 was a reasonable attorney’s fee for attending to the suit in that court, and the court instructed the jury that if defendant was liable for damages, it was also liable for reasonable attorney’s fees in the case. The propriety of the allowance of the attorney’s fee is the only question which is presented.

It is objected, first, that no claim for attorney’s fees was filed with the bill of particulars in this case; that that was simply a memorandum of the stock killed, and its value, and no notice was given defendant of such a claim for attorney’s fees until the witness was called to prove their value. In respect of this we think the statute itself is sufficient notice to the defendant that the claim will he made, and the defendant should be prepared to make any resistance to it.

The next objection is, that the attorney’s fee can not be included in the same judgment for damages done to stock by the company’s trains. It is said that the statute gives an attorney’s fee, but that the right to it is not perfect till the performance of the service for which it is given, and that it is a fixed rule of law that no recovery can be had in any suit, except for causes of action perfected before the commencement of the suit. Although this be the general rule of the common law, it is competent for the legislature to vary it in any given case, so that we need but inquire here what was the legislative intention in this regard. The liability for attorney’s fees exists at the time the suit is commenced. It arises at the same instant with the suit for damages, and although it be that the services for which the attorney’s fee is given are performed during the progress of the suit, the fee may most fitly and conveniently be assessed in the same suit with the damages. There is no substantial reason why the plaintiff should be put to an additional suit for the recovery of the attorney’s fee. The law does not favor the multiplicity of suits. The mere technical reason that the attorney’s services had not been rendered at the time of the commencement of the suit, should weigh nothing against the intendment of the statute. The liability which is created by the act is for the damages and attorney’s fees conjunctively, and, in our opinion, it was the intention of the legislature that they should be assessed together in one and the same action, such intention being derived from the language of the act.

The further objection is made that this provision for attorney’s fees is unwarrantable, as being special legislation, in singling out one class of corporations and attaching this liability to one class of cases. This provision may be upheld as being in the nature of a penalty for non-compliance with the statutory duty of fencing. The requirement of the fencing of railroad tracks is not alone for the private benefit of the owners of stock along their lines, but it has respect to the public welfare as well, as a measure for the safety of travel on railroads. As a police regulation for the promotion of the public safety in that respect, the legislature may well require the fencing of their railroad tracks by railway companies, and provide penalties for securing performance of the duty.

The judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Columbus C. Smith v. Sarah J. Brittenham.

      Filed at Springfield March 26, 1884.

    1. Parties in chancery—party in interest must sue. In equity, the party having the beneficial interest in the subject matter of the suit must sue in his own name for any invasion of his right with respect thereto, although the legal title may be in another.
    2. Same—party suing must have title. It is well settled that no one, in the absence of some statute authorizing it, can maintain a suit in chancery with respect to real estate to which he has neither the legal nor equitable title.
    3. Same—where party seeking relief disposes of his interest pending suit—whether the cause can proceed. If a party having an interest in land commences a suit in respect thereto, and before any hearing or disposition of the cause upon the merits voluntarily transfers all his interest to another, and the same is made to appear of record, the whole proceeding will become so defective, for want of proper parties, that no valid decree can be entered in the cause unless the complainant’s assignee, by supplemental bill, or otherwise, makes himself a party complainant to the suit.

      4. In this case, a former owner of land filed a bill to set aside his conveyance thereof, as having been obtained by fraud and deception, and the decree granting the relief prayed was affirmed by the Appellate Court. The record was brought to this court, when the judgment of affirmance by the Appellate Court was reversed, and the cause remanded to that court with directions to reverse the decree and remand the cause to the circuit court, with leave to amend the bill, etc., which was done; but before the reversal of the decree by the Appellate Court, the master in chancery had already made a conveyance of the land to the complainant, as required by the_ original decree, and the complainant, four days after the making of this deed, conveyed the premises to the law partner of his solicitor. After such conveyance by him, he filed his amended bill, upon the hearing of which the same decree was entered in his favor: Held, that it was error to proceed with the cause in the name of the complainant after he had conveyed his interest in the property, notwithstanding he had made a warranty deed.
    5. Rescission—for fraud—placing the parties in statu quo. Where a wife is induced, through fraud and deception, to convey her lands to another in exchange for goods for her husband, who was in collusion with the other party to the transaction, and concealed from her the knowledge of the fraud, in order to have the exchange rescinded she must place the grantee in statu quo by a return of the goods, or an offer to return them; and she will not be excused for not first doing this, from the fact that when she discovered the fraud the goods had all been sold by her husband and his assignee in bankruptcy. In such case no right to rescind exists.
    6. Where land has been exchanged for a stock of goods, if the grantor of, the land wishes to rescind for fraud he must restore the property received in consideration of the land, in kind. The other party can not be compelled to reconvey, and take such compensation as a court or jury may award him for his goods. Compensation has no place in the law of rescission. If the party imposed upon can not return the goods, he must pursue such other remedy as the law affords him. The only exception to the rule is where the thing is worthless. In that case no return, or offer to return, is necessary.
    7. Purchaser—at judicial sale—effect of a reversal of the judgment or decree. A purchaser of real estate under a judgment or decree, to which he is not a party, when there is no defect of jurisdiction, and the purchase is made in good faith, will hold the estate, notwithstanding a subsequent reversal on error of such judgment or decree.
    8. But this rule has no application when the plaintiff in the judgment or decree, or his attorney, is the purchaser. In such case the purchaser takes the title subject to be divested by a subsequent reversal.
    9. Same—bona flde purchaser without notice—who so regarded. The owner of land having conveyed the same, by deed, the grantor filed a bill to set the sale aside for fraud, and obtained a decree setting the same aside, and for a reconveyance by the master in chancery. The defendant had persistently asserted his rights to the property, and was in possession. Pending a writ of error to reverse the decree, the master made a deed to the complainant, of the premises, and the latter conveyed to a third person in a few days after receiving his deed. It was held, that this last grantee could not be regarded as an innocent purchaser without notice, and as such entitled to protection under the reversed decree. The defendant’s continued possession in such case was notice of his rights.
    10. Same—rights of real owner in possession, who is seeking reversal of decree—as against purchaser. A party in the actual possession of land under a deed sought to be set aside, who is in good faith defending the suit for the recovery thereof, and who has taken an appeal, or is prosecuting a writ of error to reverse a decree against him, can not be deprived of the fruits of his appeal or writ of error because there has been a recovery against him in the inferior court, and by the successful claimant in that court suddenly transferring the estate to. a third person. In such case he must have a reasonable time, at least, to avail himself of the right to have the highest tribunal in the State pass upon the merits of the suit.
    11. Judicial sale—master’s deed under decree for a reconveyance— whether to be considered title acquired at judicial sale. Where a deed is made by the master in chancery under a decree of court setting aside a conveyance previously made by the complainant on the ground of fraud, and ordering a reconveyance, and in default thereof that the master make such conveyance to the complainant, the title so derived by such master’s deed is not one acquired at.a judicial sale. The suit in such case is in the nature of an equitable ejectment brought to recover the land of which the defendant holds the legal title.
    12. Attorney and client—whether the relation exists. Where the printed briefs of a complainant are signed “L. & H.,” as counsel, and neither the complainant nor L. deny that the relation of client and attorney existed between them, the evidence of such relation thus offered will not be overcome by the testimony of H. that L. had nothing to do with the litigation in which the firm briefs were filed, and that his name was printed in the briefs without .his knowledge.
    13. Same—employment of one.member of a firm—whether an employment of all. Except where there is a special understanding to the contrary, the employment of one member of a legal firm is the employment of all, and the client is entitled, whether he specially consults all or not, to have the benefit of their united skill and judgment in the management of his business.
    14. Fraud—what is evidence of fraud. On bill to rescind a contract for the exchange of land for a remnant of a stock of merchandise, the goods to be invoiced and taken at cost price, the proof showed that the goods, when received, were of considerably less value than the invoice price, which was relied on as evidence of fraud: Held, that such evidence failed to establish ¡ the charge of fraud, or that the goods were not delivered at the original cost, price. The original cost may have been greatly in excess of their value when exchanged.
    15. Same—who may avail of it. If goods are sold to a husband, so that they become his on delivery, the wife, who makes payment of the price out of her own property, can in no legal sense be injured by the vendor failing to deliver any part of such goods, or by any fraud practiced on the husband. He, alone, is the injured party, and he alone can sue for the fraud or failure to deliver to him all the goods he purchased.
    16. Variance—between allegations and proof. Where a bill filed by a wife to rescind an exchange of land by her for goods of the defendant, for fraud and deception, is framed on the idea that she was the purchaser of the goods, it will not be sustained by evidence showing that the trade was made with her husband, to enable him to go into the mercantile business, and that she voluntarily contributed her land to pay for the goods.
    Appeal from the Circuit Court of DeWitt county; the Hon. George W. Herdman, Judge, presiding.
    On the 14th day of August, 1874, Sarah J. Brittenham, the appellee, filed in the circuit court of DeWitt county the original bill in this cause, against Columbus C. Smith, the appellant, to set aside a conveyance of two hundred and thirty-seven acres of land, made by her to him, on the 12th day of January, 1869, in payment of a stock of goods sold by him to her husband, John A. Brittenham, on the alleged ground said conveyance was obtained from her by means of fraud practiced on her by Smith, acting in concert with her husband. At the December term, 1874, of the court, the appellant, having failed to answer the bill, was defaulted, and at the December term, 1876, a final decree was entered against him, in conformity with the prayer of the bill. At the following March term Smith entered a motion to vacate the decree, and for leave to answer the bill, which the court refused to allow, and entered an order accordingly, which, on appeal to this court by Smith, was affirmed. (See Smith v. Brittenham, 88 Ill. 291.) As this decision did not, as was then held, affect the merits of the case as made by the bill, Smith then sued out a writ of error from the Appellate Court for the Third District to the circuit court, which brought before that court for review a complete record of the cause. Upon a final hearing on the merits, the Appellate Court reversed the decree in so far as it ordered a writ of assistance, but affirmed it in all other respects, and remanded the cause to the circuit court. That court, upon the cause being replaced upon its docket, at its March term, 1879, ordered another writ of assistance, from which order Smith prosecuted an appeal to the Appellate Court, where the order of the circuit court was affirmed, and this court, on appeal by-Smith, affirmed the judgment of the Appellate Court. (See Smith v. Brittenham, 94 Ill. 627.) Smith then sued out a writ of error from this to the Appellate Court, by which the entire record in the case was for the first time brought before this court for review. The cause was heard and determined at the March term, 1881, of this court. Upon an examination of the case, as then presented, the conclusion was reached by this court that the original bill was fatally defective, and insufficient to support the decree, and on that ground the judgment of the Appellate Court was reversed, and the cause remanded, with directions to the Appellate Court to reverse the decree and remand the cause to the circuit court, with leave to amend bill, etc., which was accordingly done. (See Smith v. Brittenham, 98 Ill. 188.) It appears, however, before the reversal of the decree by the Appellate Court, in pursuance of the directions of this court, the master in chancery had already made a conveyance of the land in question to Mrs. Brittenham, as required by the original decree in the cause. This conveyance was made on the 31st of March, 1879. Four days after the making of this deed, to-wit, on the 3d of April, 1879, Mrs. Brittenham conveyed the premises to Harvey E. Husten, the law partner of William E. Lodge, who, it is conceded, was at the time one of Mrs. Brittenham’s solicitors in the case, and it is also admitted that Husten’s name, as well as Lodge’s, appears on the briefs filed in the cause on her behalf, though Lodge testifies Husten personally had no connection with it.
    Upon re-docketing the case in the circuit court, the complainant amended her bill, which was answered by Smith, admitting the sale of the goods in exchange for the land, but denying all fraud or improper conduct on his part. He also filed a cross-bill, praying a cancellation of the deed from Mrs. Brittenham to Husten, and other relief. The general outline of the amended bill does not differ materially from the original bill, as set out in the opinion in this case in 98 Ill. 188. It charges, in substance and effect, that complainant was the owner of the land in controversy, having acquired it by inheritance from her father; that Smith owned a stock of goods at Wapella, and that her husband, John A. Brittenham, was about starting a general store at Monticello, Illinois; that Smith made a proposition to trade his stock of goods for said land; that she visited Wapella, and there agreed to exchange said land for said stock of goods, upon the following terms: Smith to take the land at $14,000, and pay for the same at that price in said goods, at their wholesale price; that Smith agreed to invoice the goods at their wholesale cost price, and if they exceeded $14,000, she was to pay the excess, and if they fell short, Smith was to pay the deficit; that she was unacquainted with the price of such goods; that she returned home, and John A. Brittenham remained at Wapella to assist in taking the invoice of said goods; that John A. Brittenham was subject to fits of distraction, and of unsound mind, and incapable of doing business; that Smith, knowing the condition of his mind, induced him to guess or lump the stock of goods and fixtures at $14,000, instead of invoicing them according to the terms she had agreed on; that Smith and Brittenham, well knowing that she would not convey said land if she knew that said goods had been lumped or guessed off, and to get the goods in John A. Brittenham’s hands, agreed to and did make out a false and fictitious invoice of said goods, showing them to be worth, at wholesale prices, $14,000, when the goods actually received by Brittenham did not exceed $6000, whereby complainant was induced to make said conveyance; that after the goods were received by Brittenham, Smith fraudulently secreted and converted to his own use the most valuable part of them, amounting in the aggregate to $4000; that she was thus damaged about $4000; that Smith, after receiving the deed, shipped the goods, to the amount of about $6000, to Monticello; that he left the invoice of the goods at Wapella, for the fraudulent purpose “of opening up and putting the goods with other goods, and prevent her from repudiating the contract; ” that she did not discover the fraud practiced upon her until four or five days before the March term, 1874, of the court,—more than five years after the commission of the fraud,—when she repudiated the contract, and filed her bill for the purpose of having it set aside; “that she was prevented from discovering the fraud by the action of Smith, in colluding with her husband, to guess off the goods, and then mix them up with said Brittenham’s goods, without any invoice, so that she could not distinguish them; ” that when the fraud was discovered she could not return the goods, for the reason that her husband and his assignee in bankruptcy had long since disposed of them.
    Upon the hearing, the circuit court found the equities, both upon the amended original bill and cross-bill, with Mrs. Brittenham, and entered a decree accordingly, from which Smith has appealed to this court.
    Mr. Thomas F. Tipton, and Mr. H. V. Tipton, for the appellant :
    Before a party can rescind a contract for fraud, he must return, or offer to return, the consideration received. The only exception is when the thing received is entirely worthless. Smith v. Brittenham, 98 Ill. 188, and authorities there cited by appellant.

      A transfer of the title to land by a decree of court is not a judicial sale, and any one purchasing from either party is chargeable with notice of all that is pending in the suit, and takes subject to his title being defeated by a reversal of the decree. Gilman et al. v. Hamilton et al. 16 Ill. 225; Talbott’s Exrs. v. Bell’s Heirs, 5 B. Mon. 523; Madison’s Heirs v. Hopkins, 12 id. 600; Clary v. Marshall’s Heirs, 3 Dana, 99.
    The original decree in this case was simply a divestiture of Smith’s title and vesting the same in Mrs. Brittenham, and the burden of proof laid on Husten to show that he took the deed in good faith, and actually paid the money for the same previous to notice. Roseman et al. v. Miller, 84 Ill. 299; Brown v. Welch, 18 id. 343; Moshier v. Knox College, 32 id. 155; Baldwin v. Sager, 70 id. 603; Boone v. Child, 10 Pet. 209.
    Husten being the law partner of Lodge, and his name appearing all the time on all briefs, he is estopped, as against Smith, to deny that he was one of the solicitors of Mrs. Brittenham. Burnham v. Roberts, 70 Ill. 19.
    An attorney can not be treated as a bona fide purchaser, so as to be protected against a reversal of the judgment. Hays v. Cassell, 70 Ill. 669; Mason v. Thomas, 24 id. 287.
    The possession of Smith at the time of the conveyance to Husten, and the litigation, then, were full notice to him of the rights Smith had to the land. He is a lawyer, and to some extent, at least, connected with the case, and he was bound to know the extent of Smith’s rights. Flint v. Lewis, 67 Ill. 299; Dyer v. Martin, 4 Scam. 146; White v. White, 89 Ill. 460; Mathison v. Prescott, 86 id. 493; Brown v. Gaffney, 28 id. 150; Riley v. Quigley, 50 id. 304; McDowell v. Lucas, 97 id. 489.
    The possession of land is notice to all persons dealing with the land of all the rights of the party in possession. Morrison v. Kelly, 22 Ill. 610; Doolittle v. Cook, 76 id. 354; Rupert v. Marts, 15 id. 540; Bartling v. Brasuhn, 102 id. 441.

      This case has none of the elements of a judicial or execution sale, and hence the cases cited by appellee have no application. In this case the original bill contained no allegation sufficient to give the court jurisdiction to cancel the deed. Smith v. Brittenham, 98 Ill. 188,; Fitzgibbon v. Lake, 29 id. 177. See, also, Smith v. Race, 27 Ill. 393; Alabama Conference v. Price, 42 Ala. 49; Cooper v. Sutherland, 3 Iowa, 114; Moore v. Neil, 39 Ill. 256; Frazier v. Steinrod, 7 Iowa, 339; Torrence v. Torrence, 53 Pa. 505; Long v. Burnett, 13 Iowa, 28; Stolles v. Middleton, 4 Dutcher, 32; Gerrard v. Jameson, 12 Ind. 636 ; Carter v. Waugh, 42 Ala, 452; Satcher v. Satcher’s Admr. 41 id. 26.
    As a purchaser, Husten is chargeable with notice of all defects in the title papers of Mrs. Brittenham. Thompson v. Blair, 3 Mur. 583; Graves v. Graves, 1 S. & M. 165; 2 Leading Cases in Equity, 120, and cases cited; Wilson v. Arnold, 5 Mich. 98; Morris v. Vanderen, Dall. 64.
    The decree having been reversed on a writ of error, the appellant is to be restored to all things which he lost by reason of the decree. Cummings v. Noyes, 10 Mass. 433; Jones v. Harker, 5 id. 264; Goodin v. Tounee, Brownell & Golds. 1072; Bacon’s Abr. 390.
    Husten stands simply as the assignee of whatever rights Mrs. Brittenham had, and no more. Roberts v. Clelland, 82 Ill. 538; Reynolds v. Hollis, 14 Cal. 667.
    Messrs. Weldon & McNulta, for the appellee:
    Where the court has jurisdiction of the subject matter and of the parties, the reversal of the decree authorizing the sale, for error, will not affect the title of a bona fide purchaser for value. Whitman v. Fisher, 74 Ill. 147.
    If a decree be reversed for error, it is a settled principle of the common law that the defendant shall hold the property sold. To this rule there may be an exception, and it is when the complainant has become the purchaser, and still holds the title under his purchase. The rule can only affect the complainant or a party to the record, or one strictly occupying that relation. Fergus v. Woodworth, 44 Ill. 374.
    The reversal of a decree will not affect bona fide purchasers under it before any proceedings have been taken to reverse it. Mulvey v. Gibbons, 87 Ill. 367; Horner v. Zimmerman, 45 id. 14; Feaster v. Fleming, 56 id. 457; Goodwin v. Mix, 38 id. 115.
    A purchaser bona fide, is one who actually purchases in good faith. 2 Kent’s Com. 512; 1 Bouvier’s Law Dic. 211.
    The same rule holds good when the decree vests the title without sale. Wadhams v. Gay, 73 Ill. 415.
   Mr. Justice Mulkey

delivered the opinion of the Court:

There are several distinct grounds upon which the decree in this case is erroneous, and it must therefore be reversed.

It is a well recognized rule that in equity the party having the beneficial interest in the subject matter of the suit must sue in his own name for any invasion of his rights in respect thereto, although the legal title may be in another. (Frye v. Bank of Illinois, 5 Gilm. 332; Elder v. Jones, 85 Ill. 384; Moore v. School Trustees, 19 id. 83.) It is also well settled that no one, in the absence of some statute authorizing it, can maintain a suit in chancery with respect to real estate to which he has neither the legal nor equitable title. (Bowles v. McAllen, 16 Ill. 30; Hoare v. Harris, 11 id. 24.) If such an interest in the complainant is indispensable to the commencement of the suit, as will be conceded, the conclusion would seem to follow that where a party having such interest commences a suit, and before any hearing or disposition of the cause upon the merits voluntarily transfers all his interest to another, and the same is made to appear of record, as is the case here, the whole proceeding will become so defective for want of proper parties, that no valid decree can be entered in the cause until the complainant’s assignee, by supplemental bill, or otherwise, makes himself a party complainant to the suit,—and this, indeed, is the well recognized doctrine and practice in such cases. Mason v. York and Cumberland R. R. Co. 52 Maine, 82.

The decree in this case, so far as it affects the title to the land in controversy, is based exclusively upon the amended bill of Mrs. Brittenham, which was not filed until the 10th day of March, 1882. At that time, as is clearly shown by the proofs, she had no interest whatever in the land, she having, on the 3d of April, 1879, conveyed all her interest in it to Husten. It was, therefore, error to proceed in the cause under the circumstances, as is abundantly shown by the authorities already cited.

It is suggested, however, that inasmuch as Mrs. Britten-ham’s deed to Husten contains covenants for title upon which she is still liable, notwithstanding the transfer of the lands, she may, nevertheless, by reason of her liability on the covenants, maintain the amended bill, and authorities are cited in support of this position. We do not think any of the cases cited sustain this view, and as the amended bill does not proceed upon any such a theory, we deem it unnecessary to enter upon a discussion of them. Moreover, it would be going a long ways to proceed in the case to a decree, notwithstanding her conveyance, upon the presumption she still had an interest in the subject matter of the suit, when she herself swears she has no such interest. It would, at least, be more charitable to presume there has been a release of her liabilities or her covenants.

But outside of this there are other reasons, as already indicated, why the decree should be reversed. When the case was here the last time the bill was held totally defective, for, among other reasons, it did not show a return, or offer to.return, the goods received by Brittenham in exchange for the land. In the present amended bill an effort has been made to relieve it of this objection, but in our opinion it has not been successful. The reason now assigned for not returning, or offering to return, the goods, is, that they were all sold and disposed of by Brittenham, or his assignee in bankruptcy, before the fraud of appellee was discovered. This is not a sufficient answer to the objection in a case like the present, where there has been a simple exchange of specific articles of property. In such a case it is a misapprehension to suppose that the right to rescind exists where both parties can not be placed in statu quo. To take the land from Smith and give it to Mrs. Brittenham, and give him in lieu of the goods a certain sum of money, such as a court or jury might think he was entitled to by way of compensation for his goods, would be, in effect, compelling him to sell his goods on terms he never consented to, and would not, in any legal sense, be a rescission of the contract. It would lack the essential element of mutuality. Compensation, as we understand it, has no place in the law of rescission. Where property has been exchanged, as in the present case, it must be restored in kind, otherwise there can be no rescission, and if the injured party is unable to do this, by reason of having sold or otherwise disposed of what he received under the contract, or any substantial part of it, he is simply in no position to ask a rescission, but must pursue such other remedies as the law affords him. The only exception to the general rule here stated,— if, indeed, it may be called an exception,—is where the thing received by the complaining party is worthless. In that case no return is required. This exception, however, is rather apparent than real; for where the thing is worthless, in a pecuniary sense, nothing is received, hence there is nothing to return. We have examined all the authorities in the briefs bearing on this question, and many others not cited, and find them entirely harmonious, and fully in accord with the view here expressed. Chitty on Contracts, (10th Am. ed.) 815, note b; Benjamin on Sales,' (1st Am. ed.) sec. 452, note b; 1 Leading Cases in Equity, p. 831, part 2; 2 Pomeroy’s Eq. Jur. sec. 910; Buckenau v. Homey, 12 Ill. 338; Wolf v. Dietzsch, 75 id. 205; Smith v. Brittenham, 98 id. 188.

It follows, from what we have said, whatever equities Mrs. Brittenham, or those claiming under her, may have, growing out of the alleged fraudulent contract, neither she nor they have any right to have the contract rescinded, and it therefore follows the land belongs to Smith, unless by virtue of the master’s deed to Mrs. Brittenham, or the latter’s deed to Husten, or by reason of their united operation, he has been deprived of the title.

The doctrine is well established, that one purchasing real estate under a judgment or decree to which he is not a party, will, where there is no defect of jurisdiction, and the purchase is made in good faith, hold the estate, notwithstanding a subsequent reversal on error of such judgment or decree. (Whitman v. Fisher, 74 Ill. 147; Mulvey v. Gibbons, 87 id. 367.) But this rule has no application where the plaintiff in the judgment or decree, or his attorney, is the purchaser. Jn such case the purchaser takes the title subject to be divested by a subsequent reversal. (McLagan v. Brown, 11 Ill. 519; Fergus v. Woodworth, 44 id. 374; Mason v. Thomas, 24 id. 285; Dickerman v. Burgess, 20 id. 266.) The case in hand js unlike any of those just cited, and the general rules established by them have but little, if any, direct bearing upon it. The title sought to be enforced by the bill in this case was not acquired at a judicial or execution sale, and no one connected with the suit is claiming through such a sale. The proceeding is in the nature of an equitable ejectment, brought by the complainant, to recover a tract of land, the legal title to which is conceded to be in Smith, or at least it is conceded to have been in him at the time of filing the original bill. It is not denied that if Mrs. Brittenham had made no conveyance to Husten she would hold the title to the property acquired by the master’s deed, subject to the final decision of the case in this court; hut it is claimed that Husten, her grantee, occupies a better position in this respect than she would, had no such conveyance been made,—in other words, that he is a bona fide purchaser for value, and as such is entitled to the protection of a court of equity, and Horner v. Zimmerman, 45 Ill. 14, and Wadhams v. Gay, 73 id. 415, are relied upon to sustain the position. Waiving, for the present, the questions whether Husten is to be regarded as an attorney in the case, also, whether he is chargeable with notice of Smith’s rights, and whether he has otherwise brought himself within the provisions of the law relating to bona fide purchasers, it may be stated in general terms, without stopping to point out all the differences between those .cases and the one before us, that we do not regard the latter as being controlled by them. There is one characteristic feature in this case that does not appear in either of the others, namely, the record in this shows a determined purpose on the part of Smith, from the day he first applied to have the default set aside, to assert his rights to the property by every legal means within his power, until successful, or until the highest judicial tribunal had decided against him, and at the very time Mrs. Brittenham conveyed to Husten, an appeal had been prayed and allowed to the Appellate Court, which was not determined till long afterwards. We can not sanction the claim that where one in the actual possession of land is in good faith defending against an adverse suit for the recovery thereof, he can, merely because there has been a recovery against him in an inferior court, be deprived of all the fruits of an appeal or writ of error, by the successful claimant suddenly transferring the estate to a third party. Before the owner of a freehold estate can be compelled to surrender it to an adverse claimant, he has a right, if he desires to do so, to be heard in the highest appellate tribunal of the State, and for this purpose, where an inferior court has rendered an adverse decision against him, he must have a reasonable time, at least, to avail himself of this right. Concede appellant’s counsel did not avail themselves of the most appropriate means of bringing the case to a final hearing in this court at an earlier day, yet this should not subject him to a loss of his estate. Had appellant ceased to contest appellee’s claim for any considerable length of time, or otherwise manifested a decided purpose of giving up the contest, there would be more plausibility in the position of appellee; but there is no just ground for any claim of that kind.

But waiving this view of the matter altogether, we do not think Husten is in any better position than Mrs. Brittenham would have been had she made no conveyance. Notwithstanding the statement of Lodge to the contrary, we must, upon the record before us, hold that Husten, at the time of the execution of these conveyances, bore the relation of attorney to Mrs. Brittenham. Lodge seems to have labored under the impression that the firm name of Lodge & Husten only appeared on some of the briefs filed in the cause, and that it had been placed there without Husten’s knowledge or consent ; but upon an examination of the record before us, we find Lodge and Husten appear of record to be attorneys in this cause, and were acting as counsel for Mrs. Brittenham as late as the 25th of July, 1881, and as neither she nor Husten himself denies that he sustained that relation to her, we must regard the record itself as the most satisfactory evidence on that question. Except where there is a special understanding to the contrary, the employment of one member of a legal firm is the employment of all, and the client is entitled, whether he specially consults all or not, to have the benefit of their united skill and judgment in the management of his business; and a reasonably fair standard of professional ethics will not allow one member of a firm to have control of the suit of the client, while another is speculating in the fruits of the litigation.

Husten can not be regarded as an innocent purchaser for another reason. At the time of the conveyance to him, Smith was not only contesting in court Mrs. Brittenham’s claim to the property, but he was in the actual possession of it, claiming it as owner, and this was constructive notice to all the world of his rights in the premises, whatever they might be. Bartling v. Brasuhn, 102 Ill. 441.

There are other reasons why Husten is not entitled to protection as an innocent purchaser, but we will not stop to note them, as those already stated are amply sufficient for that purpose.

Even assuming the amended bill had been so framed as to authorize the decree in the case, which, as we have already seen, it was not, we are clearly of opinion the case made by the bill is not sustained by the proofs. The substance of the charge in the bill is, that the goods were to be invoiced and taken at cost price, and that the goods actually received at the store at Montieello, thus rated, amounted to only about $6000. Now, while the testimony of Jameson, Rhodes and Donegan, the only witnesses relied on by appellee to show a breach of the contract with respect to the amount of the goods, fix their value at from $4000 to $5000, they do not, nor does either of them, state or express any opinion as to what the goods would have amounted to at the original cost price. What the goods were then worth, and what they originally cost, are two very different propositions. The remnant of a stock of goods purchased, for instance, in 1865, when goods were almost fabulously high, might well not be worth over $5000 in 1869, when, if estimated at cost price, it would amount to five times that sum. The only satisfactory evidence on this point is that of Smith. He says: “At the time this trade was made, goods were high. As a general rule, prices are based on Coats’ spool thread. Thread was then worth one dollar and ten cents; to-day it is fifty-five cents, or a trifle less. Prints and Indian Head sheeting were worth fifteen and a half cents, while to-day you can buy them for five or six cents. The stock was taken at cost prices. Some of the goods had been on hand three or four years. ” In another portion of his testimony he states the invoice thus made out amounted to $14,954.80. Upon this question we are clearly of opinion the decided weight of the testimony is with appellant, and the case not being made out upon this point, it is clear there is no right of recovery.

But there is still another view arising upon the proofs which is fatal to appellee’s right of recovery in this case. While the bill is somewhat ambiguous with respect to whom the goods were sold, yet it is clear the theory upon which the suit is sought to' be maintained is, that the sale was made to Mrs. Brittenham, for there is no other possible view upon which such a bill could be sustained. If the goods were, in fact and in law, sold to the husband, and became absolutely his on delivery, it is very clear she could not, in a legal sense, have been injured by Smith’s failure to deliver any part of the goods stipulated for under the contract. In contemplation of law the party entitled to receive the goods alone would have been injured, which, of course, was her husband. When we look at the undisputed facts in the case, in the light of the conduct of Mrs. Brittenham herself, the conclusion is irresistible that the purchase of the goods was by the husband, and that she neither had, nor did she understand that she had, any claim to or interest in the goods after the purchase. The bill itself states that her husband, John A. Brittenham,—not she and her husband,—was about to start a general store at Monticello, Illinois, and that Smith made the proposition to trade the goods for the land, and it was known to all parties that Brittenham had already purchased, or was then about purchasing, two other stocks of goods, with which, so far as the record shows, his wife had no connection whatever, which were to be put into the establishment and business about to be started at Monticello, together with the Smith goods, which was subsequently done, without any interference or question on the part of Mrs. Brittenham. The business was carried on by him there for a year or two, and during all this time there is not the slightest proof that she had, or pretended to have, any interest in it. And even when her husband finally drifted into bankruptcy, and the remnant of these goods had passed into the hands of his assignee, she still, so far as this record shows, set up no claim to them, but quietly stood by and saw them administered in bankruptcy for the benefit of his creditors. It is hardly necessary to remark that such conduct on her part is wholly inconsistent with the idea she understood the goods to belong to her.

The substance and legal effect of the transaction, as we understand it, is simply this: Mrs. Brittenham, for the purpose of aiding her husband to establish himself in the mercantile business, voluntarily contributed the land in question to pay for the stock of goods purchased by him from Smith. Such being the legal effect of the transaction, it is clear it does not sustain the bill or the decree. In any view we take of this case we think the law is with the appellant.

The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


author: Mr. Justice Dickey

text:
    Bernhard Gradle v. Charles Kern.

      Filed at Ottawa March 26, 1884.

      1. Evidence—as giving character to an alleged fraudulent transaction. A, of the firm of A, B & Co., sold a lot of goods, etc., to D, Ms son-in-law, on the evening of January 11, for which he received a check for the price. B, another partner, not knowing of such sale, afterward sold and delivered the same goods to E, receiving part cash, and talcing a note for the balance. D, the son-in-law, about the same time bought the remaining goods of the firm from A, and brought replevin against E, the other purchaser, which suit was dismissed for want of prosecution, and a return of the goods awarded. The goods not being returned, E brought suit on the replevin bond, the surety alone being found, who pleaded title in his principal by his prior purchase, and that the merits had not been tried in the replevin suit. On the trial the court allowed the other partner, B, and another witness, to testify that B had no knowledge of any sale to D until after the replevin of the goods from E, and to facts tending to show that the remaining part of the stock was taken away in great haste in the afternoon of January 12, after the replevin: Held, that this evidence was not irrelevant, but was proper, with other facts shown, to be considered, as tending to prove that the apparent sale to D, the son-in-law, was not real, but a mere device to place the goods and proceeds where A, alone, might avail himself of them, to the exclusion of his partners and the creditors of his firm.
    2. Same—as against surety in replevin bond. In an action on a replevin bond, in which the surety alone is served, where he pleads that the merits of the replevin suit were not tiled, and sets up title to the property in his principal, whatever evidence would be competent against the principal is competent against the surety, even though it relates to facts occurring after he became surety. The surety in such action has merely the right to assert his principal’s title, and deny that of the defendant in replevin, in the same way that the latter might have done in the action of replevin.
    3. Fraudulent sale—passes no title. A person purchasing a stock of goods from one member of a firm to aid him in defrauding the other partners and the creditors of the firm, will acquire no valid title to the goods, and a subsequent sale made by the other partners in behalf of the firm will pass a good title to the purchaser from them, whether he had notice of the prior sale or not.
    4. Sale of personal property—possession must accompany the sale. Where a purchaser, for value, of personal property capable of immediate delivery, suffers the same to remain in the possession of the vendor, and while so in the possession of the vendor a subsequent purchaser of the same property, for value,. in good faith and without notice of the former sale, obtains the actual possession of the property, the title of the latter will be upheld, not only as against the vendor, but also as against the first purchaser.
    5. Law and fact—as to diligence in acquiring possession of goods by purchaser. Whether a purchaser of goods has used due diligence to acquire possession so as to protect his title against a subsequent purchaser, is a question of fact, which the court has no right to take from the jury by an instruction.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    This was an action of debt, brought by Charles Kern, sheriff, for the use of Emanuel Klein, upon a replevin bond executed by Joseph Metzler, as principal, and Bernhard Cradle, as surety. The replevin suit was dismissed for want of prosecution. By reason of the case not having been disposed of on the merits, the surety, who alone was served, was permitted to plead Metzler’s title to the goods replevied, in bar of all except nominal damages.
    The record shows that Strausz, Schlesinger and Potowsky were partners, under the name and style of Strausz, Schlesinger & Co., engaged in the manufacture and sale of ear muffs, in the city of Chicago. The manufacturing was done usually in the summer and early fall, and the vending in the fall and winter. In January, 1877, this firm had on hand in their store a quantity of ear muffs, and a quantity of materials not manufactured, consisting of black plush, black binding and elastic braid, which had cost them about $1000. These last named three articles were not needed for .use until the then coming summer." In the early part of January, 1877, the partners agreed that these articles should be sold to raise money to meet their paper about to mature. Not long after, Schlesinger reported to his partners an offer he had received to buy at about $720. On January 11, 1877, Potowsky, having about noon of that day received an offer from Klein to take the lot at $742.88, reported the same to his partners, and advised to accept it. Schlesinger objected, and Strausz was undecided, and hence they came to no conclusion. After-wards, in the evening of the same day, the approval of Strausz having been given, Potowsky went to Klein’s store, and told him they had accepted his offer, and would send the goods over in the morning. In the meantime, Schlesinger met his own son-in-law, Joseph-Metzler, at the store of the latter, and then procured an offer from him to take the goods at $849, which Schlesinger accepted, and Metzler at once gave him a check for that amount, payable to the order of Joseph Metzler, and indorsed by him to Strausz, Schlesinger & Co., and took from Schlesinger a bill of sale of the goods to him, in the name of the firm. This was in the afternoon,—not later than four or five o’clock. On the morning of January 12, 1877, Potowsky put these goods in an express wagon, took them to Klein’s store, and delivered them to him about nine or ten o’clock, and received in payment therefor $442 in money, and Klein’s due bill to the firm for the balance of the price,—$300. In the course of the morning of the same day, Joseph Metzler sued out a writ of replevin against Klein, and took the goods in question away. The action of replevin was dismissed for want of prosecution, and a return of the goods ordered. Gradle, the surety, pleaded in mitigation of damages that the right of property was in Metzler, and not in Klein. A trial of that issue resulted in a verdict and judgment in favor of the plaintiff for $1389,—the value-ef the property, and interest. This judgment, on appeal to the Appellate Court for the First District, was affirmed, and Gradle appeals to this court.
    On the trial, Klein testified that when he bought and paid for the goods he had no notice that any sale had been made to Metzler, and there was evidence tending to show that he had notice of that sale. It was also shown that Schlesinger had applied to Metzler and his brother, then in business together, to sell them the entire stock of goods and materials, but that the brother declined to share in the purchase. One Sehroeder, called by the plaintiff, testified that on January 12, 1877, he saw Joseph Metzler at the place of business of Strausz, Schlesinger & Co., and was permitted to testify, over objections, that Metzler came there in the afternoon of that day with another man, and found Schlesinger there, no other partner being there. The man produced a paper, and soon after Sehlesinger went into the street and procured express-men and laborers, and in haste packed and took away the stock of ear muffs, and Metzler asked witness to assist. The goods, consisting of several hundred boxes, were all taken then, and the office furniture and shelves were taken the next day. It appears that the muffs were purchased by Metzler separately from the materials claimed by Klein. Charles Metzler testified that the ear muffs were bought after the plush, braid and binding, but were first delivered. All the goods came to the store of Metzler & Co. about the same time. The other material facts appear in the opinion.
    Messrs. Moses & Newman, for the appellant.
    Mr. Francis Lackner, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

We find no reason to disturb the judgment of the Appellate Court. It is contended the circuit court erred in admitting the testimony of Strausz and Schroeder, given after the proofs for defendant were closed, tending to prove that Strausz had no knowledge of any sale to Metzler until after the goods in Klein’s hands had been taken on the writ of replevin, and also tending to prove that the remaining part of the stock (ear muffs) was taken away in great haste in the afternoon of January 12, and after the other goods were taken from Klein on the writ of replevin, and for this error the Appellate Court ought to have reversed the judgment. It is insisted all this evidence is irrelevant, having no legal bearing upon the title of Metzler or Klein to the goods in controversy. We do not think so. The testimony of Charles Metzler, already given, tended to show that while the purchase of the plush, braid and binding was made by Metzler before his purchase of the residue of the stock, it also tends to show that the, latter purchase was made soon after, and does not exclude the idea that it was made on the evening of the 11th. The facts that the sale was to Schlesinger’s son-in-law; that Metzler’s brother refused to be a party to either purchase; that the goods were brought to the store at the same time; that Metzler, when Sehlesinger found Klein had offered 87J cents a yard, at once consented to take the goods at one dollar, when before he was willing to give no more than 85 cents, and his partner would not buy at that,—afforded ample ground for further inquiry, and authorized proof that both these sales were kept from the knowledge of his partners by Sehlesinger’, and that the ear muffs were rémoved from the store with great haste, and in the absence of and without the knowledge of his partners. The proof, subsequently brought out, that while there were some four hundred boxes of ear muffs taken from the store of Strausz, Sehlesinger & Go., only one hundred and twenty-five boxes reached the store of Metzler & Go., tending to show that over two hundred of the boxes were spirited away, further shows that it was proper all this evidence should be considered by the jury. It tended to show that the apparent sales to Metzler were not real, but were mere devices to place the goods and the proceeds where Sehlesinger alone should be' able to avail himself of the same, to the exclusion of his partners and the creditors of his firm. If this were really so, and Metzler was a party to this arrangement, and for that purpose, he acquired no valid title to the goods, and a subsequent sale by the other partners, in behalf of their firm, passed a valid title to Klein, whether he had notice of the fraudulent -sale to Metzler or not.

It is said that because the sales were separate, the second could not vitiate the first, which, it is said, was consummated. Before the court could act upon that hypothesis, it would be necessary that the court should decide that they were in truth separate, and not parts of one arrangement between Metzler and Sehlesinger. That, under the evidence, was a question of fact for the jury. ' The court was right in omitting to decide it. Charles Metzler had sworn that the ear muffs were bought after the plush, braid and binding, but were first delivered. The evidence tends to prove that all came to the store of Metzler & Co. at the same time, or about the same time. He nowhere says the ear muffs were not bought until the 12th, and if he had, the transactions are so connected with each other that such difference in date would not be decisive of the character of the transaction.

It is said some of this proof relates to acts done after Gradle signed the bond, and he should not be affected thereby. Gradle has, by the statute, merely the right to assert Metzler’s title and deny Klein’s, in the same way that Metzler might have done in the action of replevin. Whatever would be competent against Metzler in such case, was competent against Gradle, who has the privilege of standing on Metzler’s rights.

We do not deem it necessary to discuss in detail each of the rulings of the court in giving, modifying and refusing instructions asked by the parties, respectively. The two instructions given at the request of plaintiff we think were correct and appropriate, and not calculated to mislead, and when taken together, clearly eliminate the questions of law from questions of fact, and do not, as counsel suggest, leave questions of law to the jury. It was not error to modify, as was done, instructions marked “1st” and “4th,” given at defendant’s request. Instructions “2d,” “7th” and “8th,” given at the request of defendant, ought not to have been given. Instructions given at the request of defendant, and marked “3d,” “5th,” “6th,” “9th,” “10th,” “11th,” “12th,” “13th” and “14th,” presented to the jury, fully, the law of the case as to all the questions raised by instructions asked by defendant. Those asked by defendant, and marked “ 15th, ” “16th,” “17th,” “18th,” “19th,” “20th” and “22d,” were properly refused by the court. Each of them, except the 22cl, was clearly erroneous on its face, and that marked “22d” had no relation to the question at issue.

Where a purchaser, for value, of personal property capable of immediate delivery, suffers the same to remain in the possession of the vendor, and while so in the possession of the vendor a subsequent purchaser of the same property, for value, in good faith and without notice of the former sale, obtains the actual possession of the property in question, the title of the subsequent purchaser must be upheld,—not only as against the vendor, but also as against the first purchaser. Counsel for appellant, conceding this to be the general rule, strenuously insist that this case, by the proofs, is taken out of the general rule. The substance of the contention is, that by the proofs, Metzler was guilty of no improper delay in his measures taken to get possession. It is said, in substance, that the sale to Metzler was between four and five o’clock in the afternoon of the day; that the hour for closing business was six, and that soon after nine the next morning Metzler came for the goods, and hence he was guilty of no faulty delay. Without passing upon the question sought to be presented upon this hypothesis, it is clear that whether the supposed action be faulty or not, is a question of fact, which the circuit court had no lawful right to take from the jury. The court was not asked to charge that if Metzler used due diligence to acquire possession, his title should prevail. Aside from this, some of the proofs pointed to about the hour of noon on the 11th of January as the date of Metzler’s purchase, and the proof is not conclusive that he took any measures to gain possession before about noon of the 12th. Be this as it may, the instructions asked, which demanded of the court to rule that as a matter of law this case does not fall under the general rule of law mentioned, were properly refused.

Finding no material error in the rulings, the judgment is affirmed.

Judgment affirmed.