author: Mr. Justice Walker

text:
    George Ligare v. Joseph Peacock.

      Filed at Ottawa January 23, 1884.

    1. Bill fob an accounting—at what stage of the suit an account may be taken. On bill by one partner against another for an account of the partnership matters, the first thing to be determined is, whether the parties are, in equity, required to account. When this is so found, the case should be referred to the master to hear the evidence and state an account. Until the case comes before the master there is no necessity to take evidence as to the state of the accounts.
    2. Settlement—receipt as evidence thereof. Where property of one person is sold by another, and a receipt given for a certain sum, even though for a less sum than the amount of the sale, the giving of such 'receipt will authorize the presumption of a settlement of such transaction.
    3. Partnership—presumption as to equality of interest. Where the fact of the existence of a partnership is established, in the absence of proof to the contrary it will be presumed that the interest of each partner is equal.
    4. Same—what business embraced in the partnership arrangement— evidence thereof. It was contended by one party to a bill for a partnership account, that there was a partnership between him and the other party in the sawing of lumber, and also in a lumber yard in Chicago, to which the lumber, when sawed, was shipped, while the latter contended that the partnership did not embrace the businéss in Chicago, and as evidence to corroborate his statement showed that he had made annual accounts, in which he credited the firm with the lumber he received at wholesale prices, to which accounts no objection was made: Held, that this was not evidence proving there was no partnership in the business at Chicago. If there was such a partnership, it mattered not what price was credited for the lumber. It could only amount to a memorandum of the amount received, and for which the party receiving should account.
    5. Same—dissolution—what so regarded. After the formation of a partnership, by which one of the partners was to manufacture lumber and ship the same to the other in Chicago, to be there sold by the latter, each to share equally in the net profits, and the business was carried on for several years, the partner in Chicago refused to furnish any supplies for the manufacture of lumber, and the other refused to ship any more lumber to him, nothing being done by either, after this, recognizing the partnership as existing: Held, that this was as effectual a dissolution as -if the parties had formally and specifically agreed that the partnership should then terminate.
    6. Where both partners refuse to perform their part of the partnership agreement, there is no rule of law requiring or recognizing a continuance of the partnership. Even if one partner refuses to act under the partnership agreement, the other may elect to consider it as terminated.
    7. Same—use of partnership property by one party, after dissolution— liability. Where a partner, after a dissolution of the partnership, remains in possession of the partnership property, as saw-mills, manufacturing and selling lumber to others on his own account, he will be required to account to the firm for a reasonable rent of the property, after deducting repairs, taxes paid, and necessary expenses in its preservation; and if he ^appropriates firm property to his own use, he must account for it at a fair cash value.
    8. Same—excess in capital advanced by one partner—adjustment in respect thereto, on an accounting. Where one partner furnishes more than one-half of the capital employed in a firm, when the partner’s interests in the business and net profits are equal, his co-partner, in adjusting the partnership account, should be charged with six per cent interest per annum on one-half of the excess of the capital so furnished,—or, what amounts to the same thing, the firm should be charged with that rate of interest upon all capital furnished by the one partner more than the other, treating such excess as a loan to the firm.
    9. Same—adjustment on an accounting and final settlement—in the particular case. On the settlement of a partnership between A and B, in the manufacture and sale of lumber, in which A was to furnish, and did furnish, all the supplies for the manufacture of the lumber, which was shipped to him in Chicago, to be there sold by him as partnership property, A should be charged with all the lumber shipped to him, with the profits derived from its sale, and credited with all expenses of the yard in Chicago, and all supplies furnished by him to B to enable him to operate the mills in making the lumber, and for all firm money he may have appropriated to his own use he should be charged with interest from the time of such appropriation. A should also be charged with all supplies furnished to him by B, and credited with all funds paid out by him for logs, etc., in operating the mill, and if he still retains any of the firm money, or has used any of its property after the dissolution, he should be charged with it, and interest from the time of such appropriation to his own use; and each of them will be entitled to a credit for any means advanced by him in reconstructing or repairing the mill, or for its improvement.
    10. Same—partner’s right to charge for services. In the absence of any agreement to the contrary, partners will not be entitled to charge the firm for their services, time or skill in conducting its business. The presumption is that each partner is required to use his skill, time and labor for the promotion of the interests of the firm.
    Appeal from 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. C. C. Bonney; Mr. S. M. Moore, and Mr. Lyman M. Paine, for the appellant.
    Messrs. J. P. & T. R. Wilson, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed by appellant for an account of partnership matters between him and appellee. An answer was filed by appellee, and he also filed a cross-bill, to which appellant filed an answer. The court below referred the case to the master to hear evidence and state an account between the parties, and report his findings to the court. After a hearing, the master reported an account, with the evidence, and his report was approved, and a final decree was rendered against complainant for $21,280.61, and the ease was removed to the Appellate Court, where the decree was affirmed, and he brings the record to this court, and urges a reversal.

This record contains a large amount of irrelevant matter, and evidence relating to the previous pursuits of the parties, and a considerable portion appears to have been duplicated in the record, and the record is greatly incumbered, and imposes a great amount of unnecessary labor to separate the important from the immaterial matter in the abstract and record.

In such a case as this the first question to be determined is, whether the parties are in equity required to account, and being so found, the case should be referred to a master to hear the evidence and state an account. Until it comes before the master there is no necessity to take evidence as to the state of the accounts. If previously taken, it unnecessarily incumbers the record. It is true appellee denies the partnership was formed in April, 1853, but appellant, who testifies it. was, is strongly corroborated by other witnesses, and appellee testifies so recklessly, and with such manifest feeling, that it detracts greatly from the weight of his evidence. He testifies that when appellant took charge of the mills he was to receive only such compensation as appellee saw proper to give him. In another part of his evidence he says appellant was to take charge of and operate the mill for his board, until the partnership should be formed. He states that he released the mortgage on the forty acres of land because appellant’s wife cried, and besought him to do so. Now, these statements are too incredible for ready belief. He swears to facts as true, of which he could not possibly have had any personal knowledge. He manifests great bitterness and hatred of appellant. On the other hand, appellant testifies with apparent candor, and is corroborated in much of his evidence by other witnesses. On reviewing the whole of the evidence on this question, we are of opinion it proves that the partnership commenced in April, 1853. We therefore must hold that the statement of the account must commence at that time, and extend down to the time the partners refused to proceed further and do anything more under the partnership agreement.

Then, what were the terms of the contract of partnership ? It not having been reduced to writing, they must be gathered from the statements of the parties, and the circumstances attending the transactions had under it.

Appellant testifies that the partnership was to be equal, and he is corroborated by the agreement by appellee, in February, 1854, to convey to appellant one-half of the property, which he subsequently did; but where a partnership is proved to exist, in the absence of proof to rebut it 'the presumption is that it is an equal partnership. Had appellant’s interest been less than one-half, the property would surely have been conveyed in proportion to that interest. Appellant testifies that he was to take charge of the mills, manufacture lumber, and ship it to appellee at Chicago, and he was to sell it, and they were to share the profits equally: This appellee denies, and insists that he was to purchase it from the firm at the current wholesale prices of such lumber in that market at the time it was received. If this was the contract, why did appellee consult, by letter, with appellant as to the location and other particulars in reference to his opening a lumber yard in Chicago ? Why write appellant threatening to close the'yard if the mill could not furnish more lumber? If appellant was not a partner in that yard, what interest was it to him whether appellee had a lumber yard, or where it was located, or whether, when appellee had opened it, it should be closed or remain open ? If the agreement was as claimed by appellee, it was not of the' slightest concern to appellant whether there was a lumber yard in which it should be placed for sale. Nor can we believe any intelligent business man would have so written appellant if he had no interest in the yard. We are therefore of opinion that appellant was a full partner in the business at Chicago, and after paying the firm debts, and deducting all expenses of the business in the yard, is entitled to one-half of the profits.

But it is said that appellee rendered annual accounts, in which he credited the firm with the lumber he received at the wholesale price, and appellant never objected to the accounts. It is insisted this is strong evidence that the agreement was as appellee states it. If there was a full partnership in the business at Chicago, as we think there was, it was not of the slightest importance at what price the mill was credited, or whether at any price, as it was only intended as a memorandum to show what amount of lumber had been received by appellee for which he should account on a final settlement, with the profits made on its sale. This being the purpose, it did not matter to appellant what, if any, price was fixed on the lumber. He was only concerned to know that the proper amount was credited, and this being so, he was not required to object. In fact there was nothing to which he should object.

Appellant is entitled, in stating an account, to a credit of $2500,—the amount of the receipt given by appellee. It is true that the sale of the Canal street lots was for a larger sum over and above the amount appellant owed appellee when he took the assignment of the contract of sale to appellant, with the balance of the purchase money paid by appellee added, but the payment of taxes and other claims appellee may have had to pay may have amounted to the difference. At any rate, we must presume that a settlement of that matter was made when the receipt was given. The fact that the receipt was given, as this was, authorizes the presumption that there was a settlement of that transaction.

When did the partnership terminate ? Was it at the time both parties refused to go on under the partnership agreement, or when appellee sold out his half of the property, on the 15th of October, 1864? Appellee refused to furnish supplies, and appellant refused to ship any more lumber to him, nor did either one do anything afterwards that recognized the partnership as existing. This was as effectual a dissolution as if the parties had formally and specifically agreed that it should then terminate. When both parties refused to perform their part of the partnership agreement, there is no rule of law requiring or recognizing a continuance of the partnership. Even when one of the partners refuses to act under the partnership agreement, the other partner may elect to consider it as terminated. Here both parties, by their statements and acts, treated the partnership as ended. When one partner refuses to do what he is required to do under the agreement or the law, as a general rule the other partner can not carry on the business of the firm. Partnerships are formed for the joint action, influence and skill of each individual member of the firm. In this case appellant continued in possession of the firm property at the mills, manufactured lumber, and shipped and sold it to other persons and in other markets, and in doing so must be held to account for the property thus retained. At the dissolution of the partnership, appellee no doubt had firm lumber and money in his hands, for which he must account on a settlement of the business of the partnership.

Under what rules shall appellant account ? Shall he be held for the value of the property, with interest, or for it and all profits he may have made after the dissolution, and before appellee sold to McDonald & Co. ? Appellee has referred to numerous authorities that establish the rule that when the partnership is terminated by the death of a member of the firm, or by a withdrawal of one partner, and the survivor retains the firm property and continues the business, he .is held liable to account for profits. This is the undoubted rule in that class of cases. The law imposes it as á duty on the survivor when the partnership is thus terminated, to wind up its affairs, and account with the legal representatives of the deceased .partner or to the withdrawing partner, and the survivor failing in this duty, becomes liable to account for profits, if any, after the dissolution, and to account for principal and interest, if there are no profits. But this case does not come under that rule. Here, when the partnership ended, each partner had in his hands, and retained, a portion of the assets of the firm. Bach having retained a portion of the firm assets, it would be inequitable to require one partner to account for profits, and permit the other to use, it may be, an equal or greater amount of the firm capital in other business, equally, or, it may be, more profitable, and to render no account for its use. Appellee has no doubt used in his business, since the dissolution, the firm money or property retained by him, and if he used it in other business, or loaned it, it would be impracticable to trace it and ascertain the profits or accumulations he has derived from its use. As each retained a portion of the firm assets, and neither demanded a settlement of the affairs of the firm and a division of the assets, the principles of equity and justice authorize, if they do not require, that we regard what each retained as a division pro tanto, and that each be charged with the sum ' so retained, and account for the portion in his hands. This is fair and just, and is demanded by equitable principles.

Here appellee, after the partnership was dissolved, retained the portion of assets in his hands, and it was as fully his duty to proceed to wind up the affairs of the firm, as it was that of appellant. When dissolved, either partner had the power to compel an adjustment of all the business of the firm, and a settlement between the partners, but neither took any such steps; and both having delayed in compelling a settlement for so great a length of time, the firm money in the hands of each has no doubt been invested in their business, and assumed such a variety of shapes in different kinds of business that the fund and its increase can not be traced and identified. Appellant -must therefore account for a reasonable amount of rent for the use of appellee’s interest in the mill property, with interest from the date of the dissolution of the partnership until appellee sold to McDonald & Co., but may deduct therefrom necessary expenses in preserving the property, and taxes paid on it. He must be charged with and account for the goods and stores, the logs, and all other personal property at the mills at the time of the dissolution of the partnership, and all money due the firm and collected by him, with interest on these several sums from the time of the dissolution. He will be credited with any sum he may have paid on debts owing by the firm. It is not questioned that appellee furnished all the capital to purchase and put into operation the mills at Ford river. It therefore follows that appellant should be placed under the same burthens as appellee. Appellant must, as a matter of justice, be charged with six per cent interest per annum on one-half of the excess.of capital furnished by appellee above that furnished by him,—or, what amounts to the same thing, the firm must be charged with that rate of interest upon all capital appellee furnished over that advanced by appellant. That amount should be treated as a loan by appellee to the firm. Appellee should be charged with all the lumber shipped from the mills to him, with the profits derived from its sale, and he must have credit for all expenses of the yard in Chicago, and all supplies furnished by him to appellant to operate the mills, and for all firm money he may have appropriated to his own use he must be charged with interest from the time of the appropriation. Appellant should be credited by the receipt of $2500, as an advance on his share of capital of the firm, and that receipt must be held as a settlement between them of the transaction in relation to the city lots and the mortgage on the forty acres of land. That precludes the master from going back of that date in reference to that transaction. Appellant must be charged with all supplies furnished to him by appellee, and credited with all funds he paid out for labor, logs, etc., in running the mill,' and if he still retains any money of the firm, or used any of its property after the dissolution of the partnership, he must be charged with it, and interest thereon, at the same rate, from the time he appropriated it to his own use. And each of them is entitled to a credit for any means advanced by him in reconstructing or repairing the mill, or for its improvement, but neither is entitled to charge for his time or skill in conducting the business of the firm, as no agreement was made that there should be any such charges, and according to the law governing partnerships, the presumption is that each is required to use his skill, time and labor for the promotion of the interest of the firm, unless it is otherwise provided by agreement of the parties.

If we have omitted to specifically direct on other questions in the statement of the account, the master will conform his action to well recognized rules for stating such accounts between partners. Many of them are so fully settled and recognized that specific directions are not required, and of that character are, perhaps, some of those in which we have announced the rules. But inasmuch as the account was not stated according to these rules, the decree must be reversed, and the cause remanded.

Decree reversed.

Mr. Chief Justice Sheldon dissents.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Henry H. Honore v. George Wilshire.

      Filed at Ottawa January 23, 1884.

    1. Foreclosure by assignee—by scire facias—as to the acknowledging of the assignment. It is not essential to the right of an assignee of a mortgagee to foreclose the mortgage by scire facias, under the provisions of section 17, chapter 95, of the Revised Statutes, that the assignment should be acknowledged.
    2. Statute—construction. A remedial statute extending a remedy should receive a liberal construction, so that it may accomplish the purposes designed by the legislature. An enlarged remedy should not be restricted by mere construction, so as to impose conditions or restrictions not required in the statute itself.

      3. Practice—time to make objection. A merely technical objection not affecting the merits of the case, and which may be obviated by amendment, should be made in the trial court, and if not so made it will be considered as waived. It comes too late when made in the appellate court for the first time.
    4. Amendment—changing party plaintiff. If a scire facias to foreclose a mortgage is improperly brought in the name of an assignee, an amendment is permissible, substituting the name of the mortgagee as plaintiff, for the use of the assignee.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. W. T. Burgess, for the plaintiff in error:
    A scire facias to foreclose a mortgage is not an action, in the ordinary sense of that term, but a proceeding in rem. Woodbury v. Manlove, 14 Ill. 213; Menard v. Marks, 1 Scam. 25; Hall et al. v. Byrne, id. 140; White v. Watkins, 23 Ill. 482; McFadden v. Fortier, 20 id. 515.
    The assignment of the notes does not authorize the assignee to foreclose, by scire facias, in his own name. Camp v. Small, 44 Ill. 37; Winchell v. Edwards, 57 id. 45 ; Olds v. Cummings, 31 id. 191; Bourland v. Kipp, 55 id. 376.

      Scire facias being upon the record, the assignment to authorize the bringing of the suit in the name of the assignee must be duly executed and recorded. Turpin v. Ogle, 102 Ill. 148; Pryor v. Wood, 31 Pa. St. 142.
    Messrs. J. P. & T. R. Wilson, for the defendant in error:
    The objection that the assignee could not maintain the proceeding in his own name, was not raised by the assignment of error in the Appellate Court.
    The objection that the suit should have been in the name of the mortgagee, instead of his assigns, can not be raised for the first time in the Appellate Court, as it might have been obviated by amendment. Smith v. Moore, 3 Scam. 462; Tugboat “Dorr” v. Waldron, 62 Ill. 225.
    In the judgment the court finds that George Wilshire was “the lawful assignee, holder and owner of the said notes and mortgage, as survivor, as in the writ set forth.” The default admits every material averment in the scire facias. Garrison v. People, 21 Ill. 538; Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 id. 618.
    The word “assigns, ” in section 17, chapter 95, of the Revised Statutes, means the holders of the legal title to the notes secured by mortgage.
    A conveyance of mortgaged premises by the mortgagee, without an assignment of the notes, is a nullity. Carpenter v. Langdon, 18 Wall. 274; Jackson v. Blodgett, 5 Cow. 205; Merritt v. Barthalett, 36 N. Y. 44.
   Mr. Justice Scott

delivered the opinion of the Court:

In July, 1877, George Wilshire commenced a proceeding in the Superior Court, by scire facias, to foreclose a mortgage made by Henry H. Honoré to Samuel J. Walker, which mortgage was regularly acknowledged, as the statute provides, and was recorded in the proper office in the county where the land embraced in it is situated. It is alleged in the scire facias, Walker, the mortgagee, indorsed the notes secured by the mortgage, and then duly assigned such mortgage, by a written assignment thereon, under his hand and seal, and delivered the notes and mortgage, so indorsed and assigned, to William Wilshire and George Wilshire, by their firm name of Wilshire & Co., which “mortgage, with an assignment thereof, as aforesaid, from the said Walker to the said Wilshires, by their said firm name, was duly re-recorded in said recorder’s office” of Cook county, where the mortgage.d premises are situated, on the 19th day of November, 1872. It is also alleged, since the assignment of the mortgage to the firm of Wilshire & Co., William Wilshire died, and plaintiff is now the sole survivor of such firm, and as such, is the “assigns” of Walker of the mortgage, and is entitled to the money secured thereby. The scire facias contains also the usual formal averments as to the maturity of the last installments secured by the mortgage, and that the sum remaining due is now payable to the assignee of such mortgage, by reason of the assignment of the same to him. Service of the writ was made on the mortgagor, Henry H. Honoré, on the 6th day of July, 1877, by reading the same to him. At the August term of the Superior Court, after the service of the scire facias upon defendant, there being no appearance by him, or any one on his behalf, a default was entered against him, and afterwards the court found the amount due plaintiff on the mortgage indebtedness, and adjudged that plaintiff recover the sum so found to be due, and ordered a special writ of fieri facias to issue for the sale of the lands described in the mortgage. The judgment of the Superior Court was affirmed in the Appellate Court, on a writ of error prosecuted in the name of defendant, and now the case is brought to this court on error.

The only ground insisted upon in this court for the reversal of the judgment of the Appellate Court affirming the judgment of the Superior Court, is, the assignment of the mortgage by Walker, the mortgagee, to Wilshire & Co., not having been duly acknowledged and recorded, an action in the name of George Wilshire, survivor, as the “assigns” of the mortgagee," to foreclose it by scire facias, can not be maintained. The position taken is not tenable. Scire facias to foreclose a mortgage is a statutory proceeding on a record, and is a proceeding in rem. Section 17, chapter 95, of the Revised Statutes of 1874, in relation to mortgages, provides, if default be made in the payment of money secured by mortgage on lands and tenements, duly executed and recorded, on the same becoming due it “shall be lawful for the mortgagee, his assigns, or his or their executors or administrators, ” to foreclose the same by scire facias. It will be perceived the statute requires the mortgage, that may be foreclosed by scire facias, shall be “duly executed and recorded.” The statute has made provision the mortgage may be acknowledged by the mortgagor, before some officer authorized by law to take acknowledgments of such instruments. No such formality is required by statute as to the assignment of a-mortgage, to enable the assignee to sue out the scire facias in his own name to foreclose it. It is nowhere provided such an assignment shall be acknowledged as deeds or mortgages are required to be acknowledged. Originally, the remedy by scire facias, as given by statute, was confined to the “mortgagee, his executors or administrators, ” but the legislature has seen fit to extend the remedy to “assigns” of the mortgagee, and certainly the court ought not to restrict the remedy by requiring the assignment to be made in a particular way, when the legislature has not so required it to be done. It is' apprehended any assignment of the mortgage by the mortgagee, whether acknowledged or not, is valid, and will vest his “assigns” with the remedy given by statute.

After the assignment was written upon the mortgage in this case, and signed by the mortgagee, it was re-recorded, together with the assignment. Counsel seem to insist it was not a record because the assignment was not acknowledged, as deeds are required to be by law. How it would be any more a record with an acknowledgment than without it, is not understood. It is certain the assignment of the mortgage was made a matter of record, and that would seem to be sufficient, as the statute has nowhere required it should be acknowledged. It is to be remembered this is a remedial statute, and must be construed liberally, so that it may accomplish the purposes intended by the legislature. Remedies are always within legislative discretion. As has been seen, the remedy by scire facias, to foreclose a mortgage, is now given by statute to the “mortgagee, his assigns, his or their executors or administrators. ” It might have been given to the holder of the mortgage indebtedness. The legislature having deemed it proper to give the remedy to the “assigns” of the mortgagee, as well as to the mortgagee himself, the enlarged remedy ought not to be restricted, by construction, to assignments made in a particular way, not required by the statute conferring the remedy. Any assignment by which the mortgagee parts with his interest in the mortgage itself, and the indebtedness secured thereby, whether acknowledged or not, must be held to be sufficient to enable “his assigns” to foreclose it in his own name, by scire facias, in precisely the same manner the mortgagee might do.

But there is another reason why this judgment should be affirmed. At most, the objection insisted upon is a merely technical one, and does not affect the merits of the case. It ought not to be taken for the first time either in this court or the Appellate Court. (Tugboat “Dorr” v. Waldron, 62 Ill. 221.) Had it been insisted in the trial court the suit should have been in the name of the mortgagee instead of “his assigns,” under the Practice act an amendment could have been permitted, substituting the name of the mortgagee as plaintiff, for the use of “his assigns,” and the case would have proceeded to judgment without delay. Such an amendment is allowable. Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22; Camp v. Small, 44 id. 37.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey Mr. Justice Scott,

text:
    Freeman Price v. The People of the State of Illinois.

      Filed at Ottawa January 23, 1884.

    1. Criminal law—a detective participating in a criminal act—want of felonious intent. On an indictment for burglary, for breaking and entering a dwelling house with intent to rob or steal, the intent with which the defendant enters the house is the gist of the charge, and if the proof does not show the felonious intent charged, no conviction can rightfully be had.
    2. On the trial of several persons for burglary, where one claims that although he accompanied the others, and with them entered the house, he was acting merely as a detective, to fasten guilt on his associates, if the evidence tending to prove this fact is sufficiently strong to raise a clearly well founded doubt of his guilt, he ought to be acquitted.
    3. Same—evidence admissible to show the intent. One of several persons being tried on a charge of burglary, claiming that he was acting as a detective as to the others, testified to being approached by one of his co-defendants and requested to take a part in the proposed burglary and robbery. He was then asked whether or not he advised with one B., a justice of the peace, in reference to going with the parties intending to rob, which question the court refused to allow to be answered: Held, that the exclusion of the proposed evidence asked for was clearly erroneous. The giving of notice to a peace officer of an intended burglary or robbery, by one seemingly acting with others, tends strongly to negative any criminal intent on his part in afterward accompanying the real burglars.

      4. Same—sufficiency of evidence as to the absence of a felonious intent. Three persons were indicted for burglary, and convicted. It appeared in evidence that one of them, before the burglarious act was committed, gave information of the intended crime to a justice of the peace, and on the day the crime was in fact committed, informed a constable and others of the same, giving the names of all the persons concerned, and of the time and place of the proposed crime, and requested the constable to take steps to have the other defendants arrested, and that he accompanied his co-defendants to the place assigned and seemingly participated with them in their acts, and that on the following morning he gave such full information of the affair as led to the arrest of the parties. The jury found all the defendants guilty: Held, that under the facts of the case the conviction of the party giving such information, and who claimed to have acted as a detective, could not be sustained.

      Writ of Error to the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. C. C. Wilson, for the plaintiff in error:
    An officer indicted as an accessory to a burglary may, for the purpose of explaining his frequent intercourse with those indicted as principals, give in evidence the conversation between himself and another officer in relation to the best means of bringing them to justice. 1 Wharton on Crim. Law, (5th ed.) see. 700; Commonwealth v. Robinson et al. 1 Gray, 555.
    The whole evidence considered, it is evident that Price acted with the other parties as a detective, for the purpose of bringing them to justice, and a new trial should have been granted to him.
    Mr. James McCartney, Attorney General, for the People:
    There was no error in refusing to allow the plaintiff in error to testify as to his conversations with others. The court allowed those other persons to testify as to the conversations.
    The jury were the exclusive judges of the credibility of the witnesses, and the weight to be attached to the testimony of each. Valandschoot v. Adams, 61 Ill. 368; Peeples v. McKee, 92 id. 397; Rogers v. People, 98 id. 581.
    Mr. T. E. Milchrist, State’s Attorney, also for the People:
    The verdict of the jury will not be disturbed because of the insufficiency of the evidence, unless there is a clear and well founded doubt of the guilt of the accused. Gainey et al. v. People, 97 Ill. 270; Needham v. People, 98 id. 275.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 28th of June, 1883, Freeman Price, impleaded with James Moran and Abel Lindohl, was tried and convicted in the Henry county circuit court for the crime of burglary, the jury fixing the term of his confinement in the penitentiary at three years. A motion for a new trial having been made and overruled, the defendant was sentenced by the court to the penitentiary for the period fixed by the verdict. The accused having brought the case here for review, asks a reversal of the conviction, mainly on the ground it is not supported by the evidence.

The transaction upon which the indictment is based occurred about half-past six o’clock in the evening of the 9th of March, 1883, at the dwelling house of John Milroy, on his farm near the county line between Knox and Henry counties. Milroy testifies that at about the time indicated some one rapped at his door and inquired the road to Woodhull, a village some two or three miles distant; that about half an hour afterwards there was another rap at the door, and his wife, Mrs. Milroy, asked who was there, to which the party rapping replied, “It is me;” that she then inquired if it was Pete, meaning one of the neighbors, and receiving an affirmative answer, she thereupon opened the door, when three men, with cloths tied over the lower part of their faces, walked in, and one or all of them presented pistols, and said, “Your money or your life; ” that witness stepped into the kitchen to get a spade to defend himself with, where he was followed by the largest one, who subsequently proved to be Moran; that upon witness drawing a spade on Moran, the latter presented a pistol, but did not shoot, nor did witness strike with the spade; that Mrs. Milroy remained in the first room with the other two; that upon their ordering her to get a light she did so, and handed it to one of them, and then passed through the pantry down into the cellar, and from thence out of doors, when she screamed for help; that the parties thereupon left, without having got any money or other valuables. The three persons who thus entered the house were the accused and his co-defendants, and it is conceded that the latter entered the house of Milroy, as stated, for the purpose of robbing him; but the plaintiff in error insists, and we think the evidence tends strongly to show the fact, that his object in accompanying them was to expose the contemplated crime, and bring the real perpetrators of it to justice, and whether this is so or not is really the only question in the case.

The gist of the offence charged is the intent with which the plaintiff in error entered Milroy’s house. The indictment charges it was with the intent to steal, and it is conceded the facts, as testified to by Milroy and his wife, are amply sufficient to make out a case against the accused, if there was no evidence explanatory of the criminating facts occurring at the house, and testified to by them, and it is therefore unnecessary to detail more particularly what transpired there. Judging the case by what occurred at Milroy’s house alone, the plaintiff in error does not stand in any better position than his co-defendants, who are confessedly guilty, and have not therefore joined in the writ of error. The defence set up by the former is in the nature of a plea of confession and avoidance. If he was really, as he claims, acting the part of a mere detective in accompanying the other two on their criminal mission, it is a matter of no significance that no difference could be seen in his conduct and the other two at Milroy’s house, for to have acted his part well that would reasonably be expected. To have merely stood by as though he were a silent spectator, would doubtless have excited the suspicions of his comrades,' imperiled his own safety, and possibly have defeated the very object he claims to have had in becoming one of the party. The turning point in the case then is, is the evidence tending to show plaintiff in error was acting in the affair merely as a detective, sufficiently strong to raise a clearly well founded doubt of his guüt ? If so, he ought not to be convicted.

The accused testifies the first intimation he had of an intention to rob Milroy he obtained from Moran, who came to him and asked him to help rob an old man near Woodhull; that witness said to him first, “that is not my business,” but afterwards said, “I will see about it;” that Moran came to him again, about four months ago, and asked him to go, when he said, as before, “I will see about it. ” The witness was then asked whether or not he advised with Mr. Byers in reference to going with Moran. This and other questions of similar import were propounded to the witness, all of which, on objection by the People, were held improper, and the witness was not permitted to answer them. The evidence shows that Byers, the individual referred to, was an attorney, and also a justice of the peace, and it was clearly erroneous to not permit the witness to answer the questions. It is clear enough the object of the inquiry was to show that he gave notice to an officer of the law of the intended breach of the Criminal Code, which" would have strongly negatived any criminal intent on his part in going. It is also well settled one may prove his own declarations, when made just before or at' the time of starting to a particular place, for the purpose of showing his motives or object in going.

But the error in excluding this evidence was, perhaps, cured by the subsequent testimony of the witness. Further on in his testimony, in answer to the question, “Did you take any steps, after you were informed of the intended robbery, to prevent it?” the witness states that he did, by informing Van-Riper, the constable, and Mr. Byers; that on the day of the robbery he called VanRiper out of Frederick’s store, into the back room, and told him two young men were going to rob an old man, and also told him what Byers had said. The witness then proceeds in these words: “I said, you (meaning Van Riper) had better telegraph to Woodhull and have the officers ready for them. He said, ‘It won’t do. " Let them go on, and if they steal anything they will be caught. If they see the officers, they’ll skip.’ I told him these two, and another from Oneida, were going to rob Milroy; that they were going at 1:40 on that day. I told him to have officers at Milroy’s house. This was in Frederick’s store, in Altona. Milroy’s house was eight or twelve miles from Altona.” In answer to the further question, “Did you call on any one else that day, and inform them of the intended robbery?” the witness replied, “Yes; I saw Martin, the jeweler, of Altona, and I was at Byers’ house for that purpose. I told Van Riper in the forenoon, and told him what Byers had told me about it. I told him I had spoken to Byers, and that Byers had said, ‘Let me know when these men are to do this,’ and I said I would. I said to him, ‘Shall I work with them?’ and he said yes. The conversation with Byers was at six or seven o’clock the night before the talk-with Van Riper, and the talk with VanRiper was in the forenoon of the day we went to Milroy’s. Byers is the man that told me to help them, and encouraged me.”

While Byers denies that Price told him of the intended robbery before it occurred, yet he admits he called at his office next morning and told him all about what had happened, and through the information thus given the parties were arrested that day. Moreover, Col. Buswell, ex-sheriff of the county, testifies to a conversation with Byers, the next morning after the attempted robbery, in which the latter told him all about the affair, and witness states as his best recollection that Byers said Price had told him of the intended robbery before the attempt was made. Mrs. Adams, the mother of Price, also testifies that in a conversation she had with Byers, after the attempted robbery occurred, the latter said, referring to her son, “He did not do as he (Byers) told him ; that he went into the house, when he told him to stay out. ” She further states that her son told her all about the affair next morning, after it occurred. The details of this witness’ conversation with Byers, as given by her, notwithstanding she is the mother of the accused, are so natural and free from anything indicating they might have been manufactured for the occasion, as to irresistibly carry with them the conviction that her statement is true. Moreover, certain concessions are made by Byers, on cross-examination, which we think strengthen her testimony. He fully corroborates her as to the time, place and occasion of her conversation with him, and while he denies that Price told him beforehand of the intended robbery, yet in testifying to his interview with Col. Buswell, he used this language: “I did not tell him (Buswell) that Price came to me and told me of the intended robbery. I think I told him that Bob did not act as I had told him to.” That Price told the constable, Van Riper, of the intended robbery before and on the day it was attempted, and that Price visited Byers on the same day, as he claims, for the purpose of communicating the same fact to him, is not at all disputed. The constable fully corroborates Price’s statements as to the conversation with him in the back room of Frederick’s store, on the day of the attempted robbery. Van Riper, referring to Price, says: “He called me in the back room of Frederick’s store, and said he had something to tell me; that there was to be a racket at Milroy’s, and wanted me to get a squad of men and arrest them, ” etc.

Waiving all controverted questions, the undisputed facts, as appears from the foregoing, are, that the accused, on the day of the attempted robbery, went deliberately to a constable of the town in which he lived and told him all about the contemplated crime, giving the true names of the parties, and telling him when and where it was to take place, and the name of the intended victim; that the attempt was made at the very time and place, and by the parties, stated by him, and that on the following morning he, in like manner, went to a justice of the peace and told him all about what had been done, and furnished him with the true names of the parties implicated, by means of which, on the same day, they were brought to trial, and were subsequently convicted of the crime. That a sane person, really guilty of committing so grave a crime as the one imputed-to the accused, would thus act, is so inconsistent with all human experience as not to warrant the conviction of any one under the circumstances shown. The accused is a mere youth, only some nineteen years of age at the time of this transaction, and the fact that some of his conduct subsequent to the occurrence tends rather to strengthen the view taken by the jury, as is conceded, yet that may well have resulted from his youth and inexperience. But as to the exculpating facts above stated, we see no rational solution of them, and none that is satisfactory has been suggested by counsel for the People which would seem to warrant the conviction.

The judgment of the circuit court" is therefore reversed, and the cause remanded for further proceedings not inconsistent with what is here said.

Judgment reversed.

Mr. Justice Scott,

dissenting:

Dissenting, as I do, from the conclusion reached by the majority of the court, I deem the questions involved of sufficient importance to justify the expression of my views at length, of the whole ease.

At the June term, A. D. 1883, of the circuit court of Henry county, Freeman Price, James Moran and Abel Lindohl were jointly indicted for the crime of burglary. On being arraigned defendants pleaded not guilty. At the trial they were all found guilty in manner and form as charged in the indictment, and the jury, by their verdict, fixed the term each should serve in the penitentiary. Price entered his motion for a new trial. It was overruled, and sentence pronounced on the verdict. To reverse that judgment Price brings the case to this court on a writ of error.

It is not denied that Moran and Lindohl entered the house of John Milroy with the burglarious intent to rob him of his money, which they supposed he had in his house at the time, nor that Price was with them in the house, and did, to some extent, at least, assist them in the attempt they made to compel Milroy to deliver up his money. The defence insisted upon by Price is, that what he did was done without any felonious intent, but with a desire and purpose to detect and bring to punishment the guilty parties.

There is some evidence tending to establish the defence insisted upon, but of course the weight to be given to it was within the province of the jury to determine. It was for them to determine, from all the evidence before them, with what intent he acted. Under the statute of this State, as is well known, the jury in criminal cases are the judges of the law and the fact, and unless some error in the rulings of the court occurs on questions of law, calculated to mislead the jury as to questions of fact involved, or as to the admission or rejection of evidence, their verdict is seldom disturbed.

On considering the instructions given for the prosecution in this case, no serious objection is perceived to any of them. The law applicable to the facts is stated with sufficient accuracy. The fifth instruction of the series given for defendant certainly states the law as favorably for the defence he was making as he could expect to have it given. There is no just ground for complaint in the action of the court in giving and refusing instructions at the trial.

The defence is placed mainly on the broad ground defendant is guilty of no crime. At the trial he offered to prove, by his own testimony, that before going to the house where the burglary was to be committed, he told a justice of the peace, and perhaps a constable, what the parties contemplated doing, and asked the advice of the justice as to the propriety of his going with them, and that he was advised to do so that he might detect the parties in the commission of crime. To the giving of the proposed testimony an objection was interposed by the State’s attorney, which was sustained by the court. If it shall be conceded the testimony tendered was competent, the accused was not prejudiced by the ruling of the court, for at a subsequent period of the trial the testimony was in fact all admitted, and he had the benefit of it. The jury were distinctly instructed by the court to consider such testimony in passing upon the guilt or innocence of defendant. That, no doubt, was done, and that was the utmost the accused could have asked to have done in his favor.

Passing, then, to the consideration of the merits of the defence, there remains only to be considered the question of fact raised on the evidence, and that has relation to the guilt or innocence of the accused. As we have seen, that is ordinarily a question of fact for the jury, but still it is the duty of the court to see that no injustice is done, either from the passion or prejudice of the jury, or from any other cause.. On looking into the testimony contained in the record, it can not be said the verdict is so much against the weight of the evidence as to warrant a reversal of the judgment. It may be, and is, doubtless,, true, the accused had some talk with the constable or the justice of the peace, or with both of them, as to his purpose in going to the house of the prosecuting witness, prior to his going there, and it is certain that after he returned he communicated what had been done, to the officers of the law and others. These facts the jury were told they must consider in making up their verdict. Giving to these and all other extenuating facts all the force they are justly entitled to, it may be the jury rightly judged the accused did more than it would be lawful for a detective to do. It is admitted the accused went to the house of the prosecuting witness with others whose avowed purpose was to rob him of his money. That he might have done with no criminal intent. But he went much farther. It is proven he entered the house where the burglary was to be committed with one who carried a drawn pistol, that he knew was loaded with a deadly charge, that he presented in the face of the prosecuting witness, and “demanded his life or his money, ” and that accused aided him in his wicked purpose by his presence, and by exhibiting an unloaded pistol, and by the use of threatening language calculated to intimidate the witness and his wife, both of whom were old persons, and alone in their house in the night time. But for the unusual bravery exhibited by the prosecuting witness and his wife, the attempt to rob them might have been, and no doubt would have been, successful, and that result would have been accomplished, in part, at least, by the acts of the accused. It might be admitted the accused went to the house with no original felonious intent, yet, as has just been seen, he stood by and aided another while he was attempting to commit a felony. That made him a principal in the wrongful act. It was unlawful for him to aid in the perpetration oí a crime under the pretense he was acting as a detective. His presence in the house with pistol in hand, whether loaded or unloaded, was a cause of terror to the parties assailed, and as effectually aided the man who was attempting to rob them as though the intention of the accused had from the beginning been felonious. It is no answer to this view of the case to say that he notified the officers to be present and make arrests. When he ascertained there were no officers or others present to make arrests, he ought to have stopped before entering the house, and given the alarm elsewhere. This he did not do, nor is it shown he was prevented from doing it by intimidation or otherwise, but on the contrary, he actually participated in the attempted crime. The effect of his presence upon the witness and his wife was the same as if he was in very fact one of the “James boys, ” as he declared he was. The law will tolerate no such conduct. It would be to establish a most pernicious doctrine to hold that a person might participate in the commission of a felony, and obtain immunity from punishment on the ground he was a mere detective or spy upon the conduct of others.

It may be said the accused was a young man, and may have acted unwisely, and did a wrongful act with no criminal intent. The intent of the participator in any act must be gathered from what is done. There is no other mode of arriving at motive. Should it be conceded there are facts and circumstances proven that tend to excuse the guilty conduct of defendant, that is a consideration to be addressed to the executive department of the State, rather than to the courts. It is plainly proven defendant was present, and aided in the attempt to commit a most outrageous crime, and it is no justification to say he was doing it as a detective, to bring others to punishment. One who attempts to detect the commission of crime in others must himself stop short of overt criminal acts. Any other rule would permit great outrages under the specious pretense of detecting crime.

The judgment of the circuit court, in my opinion, ought to be affirmed.

Mr. Justice Craig, also dissenting.

Mr. Justice Walker : I do not concur in this decision.


text:
    Chicago, Rock Island and Pacific Railway Company v. Mary H. Lewis.

      Filed at Ottawa January 23, 1884.

    1. Appeal—reviewing controverted questions of fact. An affirmance of the judgment of the circuit court, in an action to recover damages on account of negligence, by the Appellate Court, implies a finding of the facts the same as they were found by the trial court, and no further inquiry can be had in respect to them, the statute being peremptory that in such cases no assignment of error shall be allowed in this court which calls in question the determination of the inferior or Appellate Court upon controverted questions of fact.

      2. Practice—directing the jury as to their finding. Asking an instruction to withdraw a case from the jury, or directing them to find for the defendant, in its effect is treated the same as a demurrer to the evidence, which admits everything the evidence tends to prove. Where there is evidence tending to show a right of recovery in the plaintiff, it is error to instruct the jury to find for the defendant, although the court may believe the weight of the evidence is with the defendant.
    3. Where the facts of the case are undisputed or admitted, it becomes a question of law for the court to decide whether such admitted facts constitute a legal cause of action; but where the facts are disputed, and the evidence in respect to them is conflicting, such is not the case, and it is not for the court to find the facts, and from them say whether the law is for one party or the other.
    4. Contract—release of damages—whether binding, as being unfairly obtained. A release of all claim for damages growing out of a personal injury caused by negligence on the part of defendant, if fairly obtained by the agents of defendant, (a railway company,) and understandingly executed by the plaintiff, is an effectual bar to an action to recover for such injury.
    5. If a party, however, after receiving a serious personal injury as a passenger on a railway train, through negligence of the company, is induced to sign a release of all damages by the agents of the company, through their representations or acts, which induce in his mind the belief he is only signing a receipt for money paid him at the time for loss of time and expenses incident to the delay resulting from the accident, and not as a discharge of the company for the injuries sustained, or if such release is procured by fraud and circumvention, it will be void as to the party so induced to execute the same. Fraud vitiates everything it touches, and a party will not be allowed to avail of an undue advantage obtained over another by fraudulent practices.
    6. Or, if a person, while under the influence of opiates to such an extent as to be incapacitated to contract, is induced to execute a release of damages for a personal injury, it will not be obligatory upon him, and will be no defence to an action brought by him.
    7. Same—as to negligence of parly in signing paper without reading. Where a person was severely injured as a passenger on cars of a railway company, and in a few hours after being taken to a hotel, after the injury, was induced by the agents of the company to sign a release of his right of action, under the belief he was signing only a receipt for money, which belief was caused by their fraudulent practices and representations, and it appeared that at the time he was suffering great physical pain and laboring under the effect of opiates, it was held, that under the circumstances he was not chargeable with such negligence in executing the release without having first read the same, as to preclude him from asserting the truth as to the manner in which his signature was procured.

      8. Same—refunding money received on a contract which is afterwards repudiated. If a release of a cause of action is obtained from a person by fraud and circumvention, at a time when he is incapable of making a contract rationally, and money is paid to him at the time of its execution, he may repudiate the release, and bring his action without first paying or tendering back the money received by him.
    9. Same—if a contract is void, no rescission necessary before asserting rights. An instrument absolutely void need not be rescinded in order to remove it out of the way to the assertion of a right. A contract void on account of fraud, or for any other reason, is in law as though it had never been executed.
    10. Instruction—must be founded on evidence. The court should not give an instruction where there is no evidence tending to support the hypothetical case assumed by it, for the reason that it directs the attention of the jury to elements of liability that do not exist under the evidence, and it is manifest error to do so.
    11. Same—on what degree of evidence it may be given. It is not necessary the court should be satisfied that the hypothetical case stated in an instruction is fully sustained by the testimony, before it would be required to submit it to the jury. Even positive testimony is not always required. It is sufficient if the assumed fact may be reasonably inferred from the circumstances proved.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. Ninian M. Laws, Judge, presiding.
    Mr. Thomas F. Withrow, and Mr. H. W. Wells, for the appellant:
    The court was asked to instruct the jury that there was no sufficient evidence of fraud in obtaining the release, and to find for the defendant. Before a cause is submitted to a jury the court must determine, as a matter of law, whether or not there is evidence from which the jury can reasonably infer that the plaintiff has established a prima facie case. Improvement Co. v. Munson, 14 Wall. 448; Merchants’ Bank v. State Bank, 10 id. 637; Pleasants v. Faut, 22 id. 122; Parks v. Boss, 11 How. 373; Fawling v. United States, 4 Cranch, 221; Schuchardt v. Allens, 1 Wall. 369; Oscanyan v. Arms

      Co. 103 U. S. 206; Phillips v. Dickerson, 85 Ill. 14; Pennsylvania Co. v. Conlan, 101 id. 105.
    An instruction which tells the jury if a certain fact exists, virtually tells them that there is evidence from which they can find that fact, and if there is no such evidence, the instruction is erroneous. Illinois and St. Louis Ry. Co. v. Miller, 71 Ill. 464.
    Any degree of influence of liquors or opiates does not avoid a contract. Bates v. Ball, 72 Ill. 111; 1 Story’s Eq. Jur. secs. 231, 233; Mansfield v. Watson, 31 Iowa, 212.
    It is error to submit a question of fraud to a jury upon slight parol evidence, to overturn a written instrument. The evidence of fraud must be clear, precise and indubitable, otherwise it should be withdrawn from the jury. Stine v. Sherk, 4 W. & S. 195; Irwin v. Shoemaker, 8 id. 75; Dean v. Fuller, 4 Wright, 474.
    As to the fraudulent representations and practices to avoid a written contract, see Bell v. Ryerson & Barlow, 11 Iowa, 237; McCormack v. Mulbury, 43 id. 561; Illinois Central R. R. Co. v. Welch, 52 Ill. 183; Shultz v. Chicago and Northwestern R. R. Co. 44 Wis. 638; Chicago, Rock Island and Pacific Ry. Co. v. Doyle, 18 Kan. 58; Rogers v. Place, 29 Ind. 280; May v. Johnson, 3 Port. 449; Dutton v. Clupper, 78 Ind. 137; Nebeker v. Cutsinger, 72 id. 139; American Ins. Co. v. McWherter, 53 id. 276; Clodfelter v. Hulett, 48 id. 437.
    Messrs. Barrees & Grant, for the appellee:
    The jury having found the fact that the appellee was incapable of making a contract, and overreached, this court is bound by that finding. Chicago, Rock Island and Pacific Ry. Co. v. Doyle, 18 Kan. 58.
    The release having been obtained fraudulently, under the belief it was only a receipt for the monéy paid, is not binding. Eagle Packet Co. v. Defries, 94 Ill. 599; Illinois Central

      R. R. Co. v. Welch, 52 id. 187; Schultz v. Chicago and Northwestern R . R. Co. 44 Wis. 645; Anderson v. Field, 6 Bradw. 307.
    The doctrine is, that the acts and contracts of persons who are of weak understanding, and who are liable to imposition, will be held void in equity if the nature of the act or contract justifies the conclusion that the party has not exercised a deliberate judgment, but has been imposed upon, circumvented, or overcome by cunning artifices. Story’s Eq. Jur. 236; 4 Barb. 376; 1 Mumf. 557; 32 Ind. 126.
    If a party designedly concealed a material fact which it was his duty to disclose, and upon which the other party had the right to rely, and did rely, for the purpose of misleading and deceiving the other party to his injury, he is guilty of positive fraud. Jones v. Emery, 40 N. H. 348. See, also, Sims v. Cline, Breese, 234.
    If an assent to a contract is- obtained by fraud, it will be wholly void. 1 Parsons on Contracts, 475, 476.
   Mr. Justice Scott

delivered the opinion of the Court:

It can not consistently be contended in this court, as was done in the lower courts, the evidence is not sufficient to sustain the verdict as to the alleged negligence of defendant in respect to the accident that caused the injury to plaintiff, nor that the evidence was not sufficient to warrant the jury in disregarding the alleged release of damages offered in evidence by defendant, as having been obtained through improper practices. These are questions of fact about which the evidence is conflicting, and as to which the jury found the issues against the position taken by defendant. The affirmance of the judgment of the Appellate Court implies a finding of the facts in the same way, and no further inquiry will be had in respect to them. In cases like the one at bar this court'is required to re-examine cases brought to it by appeal or on writ of error, as to questions of law only, and the statute is peremptory, no assignment of error shall be allowed which will call in question the determination of the inferior or Appellate Court upon controverted questions of fact.

Before passing to the consideration of the questions of law thought to arise on the record, it might be well first to ascertain the issues made by the pleadings that were submitted to the jury. The declaration charges defendant with negligence in regard to keeping its road-bed or track in a suitable and safe condition, as the cause of the accident that resulted in injury to plaintiff. The issues formed were, first, upon the plea of not guilty; and second, upon a special plea averring full payment and satisfaction, and discharge of all causes of action. Under these issues it was the duty of the jury to find, from the evidence, first, whether defendant had been guilty of negligence in regard to its track; and second, whether the release in evidence was so fairly obtained as to bar a recovery. On these issues the cause was tried in the circuit court. If it shall appear the evidence touching these questions of fact was conflicting, and no error of law occurred at the trial, it is plain the judgment must be affirmed, whether this court, on an original consideration of the evidence, would come to the same conclusion as did the trial and Appellate courts, or not.

It is conceded the trial court should not give an instruction to the jury where there is no evidence on which to base it,— or, what is the same thing, where there is no evidence which tends to support the hypothetical case assumed by the instruction. It is for the reason it directs the attention of the jury to elements of liability that do not exist under the evidence, and it is manifest error to do so. This is the settled law, and has been so often declared by repeated decisions of this court it is not necessary to cite authorities in its support.

It may be also stated, it is the practice in this court to examine the entire evidence, with a view to ascertain whether or not instructions were properly given or refused by the trial court, and this duty is never omitted where the discussion makes it necessary to do so. That has been done in this case, with the utmost care.

As respects the negligence of defendant in regard to the condition of its track, which produced the accident, it is so much a question of fact no argument is made in this court on that branch of the case. It is as to the defence attempted to be made under the special plea, upon which a most elaborate argument has been made in this court. It is not denied plaintiff signed the paper in evidence, purporting to release defendant from all causes of action, for the consideration stated. Of course, if it was fairly obtained by the agents of defendant, and understandingly executed by plaintiff, it would constitute an effectual bar to the action. In respect to the alleged release, the manner in which it was obtained, and the condition of plaintiff, mentally and physically, at the time she signed it, the record contains a great deal of testimony, and much of it is irreconcilably conflicting. The accident to the train on which plaintiff was a passenger occurred about eight o’clock in the evening before the day on which the alleged release was signed. It was most probably signed between one and two o’clock in the afternoon of the next day after the accident. The injury to plaintiff was very severe, and the sequel will show it will be permanent. Her shoulder blade was fractured, and the muscles in that part of her body were very much injured. Since then she has not had the use of her left arm. Evidently the shock to her nervous system was very great. She suffered intense pain as soon as the sense of feeling returned after the accident. It appears she was placed in a car that had not left the track, and continued on her journey, and reached Keokuk at about eight o’clock the next morning after the accident, and was then taken to a hotel. She lived in this State, and was anxious to get home. During the night after the accident, whisky and morphine were administered to her on the cars, but in what quantities the proof does not show with any certainty. It may he fairly assumed, from the evidence, the doses given were of the size usually administered to adult persons. On account of sickness, induced by pain, plaintiff slept none during the night, notwithstanding the opiates she had taken. She was still suffering great pain when she reached the hotel at Keokuk. Shortly after arriving at the hotel she was visited by a division superintendent of defendant’s road. It is probable, from the evidence, he visited her twice that forenoon. Perhaps the last visit was near twelve o’clock. It was at the last visit it is said he negotiated a settlement with her, in pursuance of which the alleged release was afterwards obtained. The replication to the plea of accord and satisfaction puts in issue the fairness of obtaining from plaintiff the release insisted upon so confidently as a bar to the action. On this branch of the case the court was asked by defendant to instruct the jury “there is no sufficient evidence in this case to warrant inference of fraud, and the court instructs the jury to find a verdict for defendant.” The refusal of the court to so instruct is complained of as error. Without entering upon any analysis of the evidence, it is sufficient to say it was of that character the court would not have been justified in withdrawing the case from the jury, or, what is the same thing, instructing the jury to find for defendant. It would have been plainly error in the court to have so instructed. Asking an instruction to withdraw a case from the jury is, in effect, the equivalent of a demurrer to the evidence. A demurrer to evidence is understood to admit everything it tends to prove. Applying that principle to this case, and admitting all the testimony tends to prove, this court has no hesitation in saying it is not a case that ought to have been taken from the jury, or where the jury should have been instructed to find for defendant.

The assignment of errors in this court raises broader and more comprehensive questions. First, under the law, properly applied to the facts, the judgment in the circuit court should have been reversed; and second, the facts disclosed in the record show that plaintiff in the court below had no legal cause of action. As the argument is understood, it is insisted these are questions of law, and are open for consideration in this court. On the facts, as counsel insist the record discloses them to be, an argument is made they show plaintiff had no cause of action in law, and for that reason it is said the judgment should now be reversed by this court as for an error in law in affirming the judgment by the Appellate Court. Were the facts of this case uncontroverted, or stood admitted, the writer of this opinion would most freely admit it would then be a question of law, open for consideration in this court, whether the admitted facts constituted a legal cause of action. But that is not the case here. On every phase of the case the evidence is conflicting, and touching the manner of obtaining the alleged release it is irreconcilably so. For instance, two witnesses (one an employee of defendant, and the other totally disinterested,) state most positively the alleged release was read to plaintiff before she signed it, while two witnesses (one the plaintiff, and the other wholly disinterested,) state with equal positiveness the release was neither read nor explained, as it was in fact written, to plaintiff before she signed it. All of these witnesses had the same means of knowing the facts concerning which they testified, as all of them were in the same room during the entire time,—a brief period of a few moments,—and all were giving special attention to what was being done. Whether the alleged release was fairly obtained, was a material fact, and concerning its execution the testimony of one or the other set of witnesses would seem to be .untrue. It would hardly seem there could be any room for a misapprehension. Counsel do not appear to consider the jury have found the facts to be different from what they understand the record to disclose them to be, and that an affirmance of the judgment implies a finding of the facts in the same way the trial court did. That being so, no further discussion can be had concerning them. But what did the trial court find ? First, under the plea of not guilty, the jury must have found defendant was guilty of negligence in regard to that which .produced the accident by which plaintiff was injured. The evidence tends to establish that fact, and it was material to a recovery. Second, under the special plea, it must have been found defendant did not pay plaintiff a sum of money in satisfaction and discharge of the cause of action, for that was the extent of the replication on which issue was taken to the country, otherwise the verdict would have been for defendant. No error has been assigned in this court calling in question the correctness of these findings as to the facts. The error assigned is, that on the facts as they are disclosed by the record, they show plaintiff has no cause of action. How is it to be determined what facts the record discloses ? It is certainly not to be ascertained by this court, where the evidence is conflicting. Cases brought to this court on appeal or writ of error are to be re-examined on questions of law, only. Assuming, as must be done, the facts are as the trial and Appellate courts have found them to be, it must be conceded, under the law, they show a legal cause of action in favor of plaintiff.

Passing now to consider the objections taken to the instructions given for plaintiff, it will be seen the fourth and fifth of the series, although couched in different phraseology, in fact assert the same principle, and may be considered together. It is stated as a matter of law, if the release was obtained from plaintiff by representations or acts of defendant’s agents which induced in her mind the belief it was only a receipt for money paid her at the time as compensation to her for loss of time and expenses incident to the delay that had resulted from the accident, and not as a discharge of defendant from any claim she might have against the company for injuries sustained, or if it was obtained by fraud and circumvention on the part of the agents of defendant, the writing would he void as to her. So far as these charges assert a proposition of law, no definite objection is pointed out to either of them, nor is any perceived. Fraud vitiates everything it touches, and if the alleged release was obtained by fraudulent practices on the part of the agents of defendant, it need hardly be said it would not be obligatory on the party signing it, and certainly if she was induced to sign it under the belief, created by defendant’s agents, she was simply signing a receipt for expenses, defendant would not be permitted to plead it as a defence to the action. That would be to have an advantage from its own wrong, which the law will not tolerate. A principle closely analogous to that embodied in the fourth instruction given, was declared to be the law in Eagle Packet Co. v. Defries, 94 Ill. 599. And in the case of Illinois Central R. R. Co. v. Welch, 52 Ill. 183, in considering a release in terms quite broad enough to cover the action, it was said, if the plaintiff was induced to sign it by representations it would cover merely his claim for a month’s wages, or- if he signed it under such belief induced by the words or acts of the agents of defendant, then the release would not be a bar to the suit. Other cases might be cited, but these are sufficient to show the propositions of law embodied in these charges are stated with sufficient accuracy.

The seventh instruction, of which complaint is made, contains two distinet propositions, and will be considered separately. First, if obtained from plaintiff while under the influence of opiates or liquor taken to alleviate pain, and she was incapacitated to contract, then the release was no defence to the action; and second, it was not necessary for plaintiff to pay back, or offer to do so, the money received at the time of signing the alleged release, as a condition precedent to her right to bring suit for damages. As respects the first proposition contained in this charge, some criticism is made on it hardly warranted by a natural and correct reading. It means, simply, that if plaintiff was under the influence of opiates to that extent she was incapacitated to contract, then the paper executed by her would not be obligatory, and understood in that sense, as any one would most naturally read it, obviously it is the law. It is in entire harmony with the doctrine of Bates v. Ball, 72 Ill. 108, the correctness of which is not questioned.

With regard to the second proposition, it may he safely stated as undeniable law, if the release was obtained by fraud, at a time when plaintiff was incapacitated to contract, it was absolutely void from the beginning as between the parties, and will stand in the way of the assertion of no right by the party defrauded. On principle, an instrument absolutely void needs not to be rescinded to remove it out of the way of the assertion of a right. It is for the obvious reason it never had any binding force, and there was therefore nothing to rescind. A contract void on account of fraud, or for any other reason, is, in law, as though it had never been executed. The case of Mueller v. Old Colony R. R. Co. 127 Mass. 86, has many features in common with the one being considered, and is an authority in point.

But the position taken with most seeming confidence is, there is no evidence that would warrant the giving of either of these instructions, and the insistence is, as they submit matters to the jury not sufficiently proven, it was error to give them. The argument made on this branch of the case rests on a mistaken view of the evidence. It is not entirely accurate to say there is no evidence on which to base the instructions, nor that there is not sufficient to warrant the giving of them. Whether the conclusions of this court, if it were considering the case with a view to determine the facts, would accord with the conclusions reached by the trial jury and the Appellate Court, is a matter of no consequence. The evidence in this record has been subjected to a careful consideration, and it is seen there is evidence tending, in some degree at least, to sustain every proposition submitted to the jury by the instructions. 'With the weight and credibility of this testimony this court has no concern. The determination of such questions is committed by law to other tribunals. It is sufficient if there is evidence on which to base the charges given to the jury.

Concerning the issue made by the replication to the plea of release, that no sum of money was paid in “satisfaction and discharge” of the causes of action mentioned in the declaration, the evidence is ample to justify the giving of the fourth and fifth instructions. Even the testimony of the superintendent alone, if the record contained no other, would be sufficient. There is testimony, and some of it quite satisfactory, that tends to show plaintiff was induced to believe the money was paid to her for expenses that she would incur in consequence of the accident, and not as a release of damages for the injuries sustained. It may have been under that belief she signed the alleged release. No negligence, under the circumstances, can be imputed to her on account of a failure to read the paper before signing it. She was in her private room at the hotel, suffering at the time the most intense pain, was partly disrobed, and was being attended by a lady,—a casual acquaintance,—who had been applying liniment to her person, and was then combing her hair, when two strange men entered the room to secure her signature to the paper. The interview lasted only a few moments. Evidence given is to the effect she was told by one of the men it was a receipt he wished her to sign for the money the superintendent had sent to her. There is also testimony that tends to show the paper was not read to her by the man that brought it to her for her signature. It is a matter of no consequence, so far as the decision of the case in this court is concerned," the record contains evidence flatly contradictory to that just stated. Involved, as the facts are, in conflicting testimony, but situated as it is conceded plaintiff was, it could hardly be expected she would read the paper as a careful business man would or ought to do before signing it. The omission, under the circumstances, to read the paper signed by her is certainly not such negligence as ought to bar her from asserting the truth as to the manner in which it was obtained from her. Situated as she was, she might well be excused from reading a paper she was about to sign, which, she says, she was told was a receipt for the sum of twenty dollars, for expenses. Conceding the fact to be well found, as must be done, that plaintiff was induced, by the acts of the agents of defendant, to sign the paper, under the belief it was a mere receipt for expenses, then that would be a fraud upon her, and the alleged release would constitute no bar to the present action.

On the other clause of the instruction, concerning the incapacity of plaintiff to contract, it must be conceded the testimony is not as full as it is upon other branches of the case, but still there is enough to justify the court in submitting that phase of the case to the jury, as was done by the seventh charge. It is to be remembered the accident occurred about eight o’clock in the evening. Afterwards plaintiff was placed in another car, and continued on her journey through the entire night, and arrived at Keokuk the next morning about nine o’clock. During the night whisky and morphine were administered to her at frequent intervals. Neither the number of doses nor the exact quantity of each that was given to her is known with any certainty. The testimony of the physicians examined is not satisfactory or harmonious as to the effect the medicines would produce, or as to how long the effect would continue. Indeed, they all concur that could not well be determined unless the quantity given was definitely known. It is certain the shock to the nervous system of plaintiff was very great, and that, with the effect of the medicines, might have had some effect on her mental condition. It was while she was in that condition,—mentally and physically,—within a few hours after her arrival at the hotel in Keokuk, after a night of most intense suffering, that had certainly not passed off, that she was approached in her private room by defendant’s division superintendent, as he says, to procure a settlement of any cause of action or claim she might have against the company. This, it must be admitted, was unseemly haste, and whether plaintiff was “incapacitated to contract, ” it may be safely said she was in no condition to consider, with any degree of deliberation, a matter so grave as that submitted to her.

But another view may be taken. It is not necessary the court should be satisfied the hypothetical case stated in an instruction is fully sustained by the testimony before it would be required to submit it to the jury. That would.practically include the services of a jury, and would debar a party of the constitutional right to have his cause tried by a jury. The court might take one view of the evidence, and yet, if submitted, a jury might reach a different conclusion, and it is for that reason a party has the right to have submitted any hypothetical case the testimony tends to sustain, otherwise the court might try the cause without the intervention of a jury in the first instance. But that, of course, could not be done over objection taken. Even positive testimony is not always required. It has been held by this court, in cases where there was no direct evidence of a material fact, that circumstances proven from which the fact might reasonably be inferred, would be sufficient on which to base an instruction. It was so ruled in Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 272, and also in Missouri Furnace Co. v. Abend, 107 Ill. 44

After a most careful consideration, no error is perceived in the record of sufficient gravity to warrant a reversal of the judgment, and it must be affirmed.

Judgment affirmed.