author: Mr. Justice Dickev

text:
    Charles Linington v. George H. Strong et al.

      Filed at Ottawa March 28, 1883

      Rehearing denied September Term, 1883.

    1. Eraud—negligence of the other party, as affecting the character of the fraudulent conduct. A party guilty of fraudulent conduct, whereby he induces another to execute a written contract, will not be allowed to imputo negligence to the latter as against his own deliberate fraud. Even where parties are dealing at arms’ length, if one of them makes to the other a positive statement upon which the latter acts, with the knowledge of the party making such statement, in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the guilty party can take no benefit.
    2. While the law requires of all persons the exercise of reasonable pru-dence in the business of life, and does not permit one to rest indifferent in reliance upon the interested representations of an adverse party, still there is a certain limit to this rule; and as between the original parties, when it appears that one has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other has been misled and influenced in his action, he can not escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable care and diligence.
    3. Same—change in contract--whether material. Where a party agreed to a contract which bound him to manufacture and sell 2500 dozen pinchers per year, and to pay thereon, quarterly, to the patentee, a royalty of $1.44 per gross, and the other party presented for execution what he claimed to be copies, which bound him to pay a royalty on 2500 dozen pinchers per annum, at the rate of $1.44 per gross: Held, that the variance or difference in such respect was not so material as to import fraud, or lead to the conclusion that had the latter been fully read the party executing the same would have refused to sign it.
    4. Same—affirming contract after notice of the fraud. Where a contract, before signing, has been changed as to the character of the obligation imposed, and the same is afterwards signed by the person to be bound, without knowledge of such difference, he can not avoid the contract as executed if he ratifies and acquiesces in it after his attention has been called to the change.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. E. A. Sherburne, for the appellant:
    Credulity on the part of one is no license for fraud in another. Kirkland v. Lott et al. 2 Scam. 15; Weatherford v. Fishback, 3 id. 175; Devine v. Edwards, 87 Ill. 177; Lloyd v. Higbee, 25 id. 603.
    When a bargain is made and concluded, the rule of caveat emptor ceases, and both parties afterwards are bound to exercise good faith in carrying out the contract; and if one is trusted to reduce the contract to writing, he is bound to do it truly, and any variation from it by inserting provisions not embraced in it, or omitting some of its terms, if not known and assented to by the other, is a fraud. Botsford v. McLean, 45 Barb. 487; Whitney v. Roberts, 22 Ill. 381.

      The appellant repudiated tlie contract as soon as he learned of the frautj, and made no more instruments after he discovered the change in the contract. But suppose he had continued to make the pinchers and sell all he could, that would be no ratification of the fraud, but simply carrying out, as he had a right to do, the contract he had actually made.
    Messrs. Smith & Burgett, for the appellees:
    The law conclusively presumes that appellant knew the terms of the written contract when he signed it. No trick or artifice was used to prevent his reading the same. He can not now say he did not read it. McCormick v. Malbury, 43 Iowa, 561; Hawkins v. Hawkins, 50 Cal. 558; Dutton v. Clapper, 53 Ind. 276; Clodfelter v. Hulette, 72 id. 137; Rogers v. Place, 29 id. 577; Bacon v. Markley, 46 id. 116; Wooley v. Moore, 77 id. 567; Faucett v. Currier, 115 Mass. 20; Same v. Same, 109 id. 99; Maine Ins. Co. v. Hodgins, 66 Maine, 109; Watson v. Planters’ Bank, 22 La. Ann. 14; Upton v. Tribilcock, 91 U. S. 45; McClellen v. Sanford, 26 Wis. 595; Albany City Bank v. Martin, 56 How. Pr. 500; Bigelow on Frauds, 73, 74, 115; Cooley on Torts, 488, 490; 2 Kent’s Com. 484; 1 Story’s Eq. Jur. sec. 105, 200 a, 237.
    It was the duty of appellant to have read the contract, or have another read it for him, when no artifice was used to keep him from doing so. A man is bound to use ordinary care to prevent fraud or imposition, and if he fails to do so the courts can not relieve him. Fayon v. Newson, 1 Dev. L. 20; Farrar v. Olsten, id. 69; Foley v. Cowgill, 5 Blackf. 18; Gatling v. Newell, 9 Ind. 572; Binck v. Wood, 43 Barb. 315; Mainlock v. Fairbanks, 46 Wis. 415; Brown v. Fagan, 71 Mo. 563; Slaughten v. Gerson, 13 Wall. 379; 57 Ill. 327; 19 id. 486; 15 id. 540; 4 Scam. 202; 22 Ill. 610; 56 id. 179; 70 id. 350.
    If the means of knowledge are at hand at the time, the law presumes that a party relies upon his own knowledge,

      and will not permit a denial. See the cases cited in counsel’s brief in Strong v. Linington, 8 Bradw. 436.
    Cases where one party falsely states to the other the terms of the instrument, are to be distinguished from those in which a different paper is surreptitiously substituted for that intended to be executed, Bigelow on Torts, 29, 30; Bigelow on Frauds, 73-78; Byers v. Daugherty, 40 Ind. 198; Laidla v. Loveless, id. 211; Nebeker v. Cutsinger, 48 id. 436.
   Mr. Justice Dickev

delivered the opinion of the Court:

This was an action of assumpsit, brought in the Superior Court of Cook county, by appellees, against appellant, to recover an amount of money claimed to be due April 1, 1880, upon a contract between appellant and appellees, dated April 1, 1876, which contract provided that appellant, in consideration *of the grant to him by appellees of the exclusive right and privilege of manufacturing a certain patented invention within the United States and Territories, for an improvement in pinchers, for the period of five years from the date of the contract, agreed to pay a royalty of $1.44 for each gross of pinchers manufactured, payment to be made quarterly, at the end of each quarter year; to keep an accurate book account of the number of pinchers manufactured and sold, and render a true' statement thereof at the end of each quarter; and further agreed to pay a royalty on at least 2500 dozen of said pinchers each year during the term of the contract, in default whereof appellees might terminate the contract. There was a clause in the contract providing that one-half of the royalty on 2500 dozen was to be paid to each of the parties of the first part, and as to all pinchers sold in excess of 2500 dozen the payment was to be, sixty per cent to Strong, and forty per cent to Young. The contract was set out in full in the first count of the declaration. There was a plea of the general issue, trial before a jury, and verdict for $328. A motion for a new trial was overruled, and judgment on the verdict, and appeal. The judgment of the trial court was affirmed in the Appellate Court for the First District, and an appeal was allowed by that court in the cause, and the case is before us to determine the propriety of the action of the Appellate Court in affirming the judgment.

It is urged in behalf of the appellees, that in the absence of any finding of facts by the Appellate Court, it must be taken, as found by that court, that the facts in the ease are adverse to appellant. This point the appellant attempts to meet by the suggestion that he does not ask this court to pass upon any controverted questions of fact, but claims that the judgment is erroneous upon the uneontroverted facts established, and that the instructions given by the trial court did not correctly present to the jury the law governing the case. The language of sec. 90 of the Practice act, as found in chap. 110, Hurd’s Stat. 1880, is as follows: “The Supreme Court shall reexamine cases brought to it by appeal or writ of error, as to questions of law only, and no assignment of error shall be allowed-which shall call in question the determination of the inferior or Appellate courts upon controverted questions of fact in any case, except those enumerated in preceding section. ”

In the trial court, as matter of defence to the action, it was contended that the appellees were not entitled to recover upon the contract sued on, because, as was alleged, after the terms of the contract had been agreed upon between the parties thereto, and a draft thereof reduced to writing, appellees took such draft for the purpose of having it copied in triplicate, returning with what they claimed to be exact copies thereof, which copies appellant examined cursorily,—sufficiently to satisfy himself of the general nature of the paper,— and then signed, without reading it over carefully, and it is claimed that in the contracts thus signed there were two alterations from the draft which had been agreed upon, -which alterations were of a material character. What was claimed to be the Original draft of the contract in evidence, after providing for tlie assignment of the right to manufacture for the term of five years, etc., proceeded as follows: “And in consideration thereof, the said party of the second part agrees to pay to the party of the first part a royalty of $1.44 for each and every gross of said pinchers made and sold by him during said time, payment to be made at the end of each quarter year at the office of said second party, in Chicago. And said second party hereby agrees to keep a correct book account o'f the number of said pinchers manufactured and sold by him, and render a true statement therefrom to said party at the end of each quarter, and shall also make and sell at least 2500 dozen of said pinchers per year during the term aforesaid, and in default thereof this contract may, at the option of the said party of the first part, be declared null and void.” The language of the contract as signed, after stating the assignment, etc., was as follows: “And in consideration therefor, the said party of the second part agrees to pay the party of the first part a royalty of $1.44 for each and every gross of said pinchers made and sold by him during the said time, payment to be made at the end of each quarter year at the office of the said second party, in Chicago. And said second party hereby agrees to keep a correct book account of the number of said pinchers manufactured and sold by him, and render a true statement therefrom to the said first party at the end of each quarter, such statement of account to be verified by affidavit by the party of the second part, and also agrees to pay the royalty on at least 2500 dozen of said pinchers each year during the term aforesaid, the same to be paid quarterly, at the expiration of each and every quarter, and in default thereof this contract may, at the option of said party of the first part, be declared null and void.” Then follows the provision as to the distribution of the royalty, which was added in the contract by agreement of the parties. Evidence tending to show that these allegations were true is found in the record.

As against the claim of fraud, whereby it was sought to defeat their action, appellees relied upon the fact, alleged by them, that they were, at the time of the dealing, in an adverse attitude with the appellant,—under no trust relation or obligation to him,—and that , he had the fullest opportunity to read the contracts that were executed before signing the same, and it is claimed that appellant’s omission to read the contracts before signing was such negligence upon his part as to defeat his right to deny his obligation under the terms of the contracts signed by him.

We find in the charge to the jury no cause to reverse this judgment. The court below instructed the jury, in effect, at the instance of the appellees, that the law requires every person to exercise reasonable prudence in business affairs, and that before relieving a party from the obligations of a contract upon the ground of fraud, it must appear that he exercised reasonable care and prudence to learn the nature of the contract before executing it; that if the defendant could read, and had an opportunity to read the contract before signing, it was his duty to do so, unless induced not so to do by willfully false statements of the plaintiffs, or one of them, as to its being a copy of the original; and if the defendant had full opportunity to read the contract before signing it, and was not induced to sign it by false statements made by plaintiffs, or either of them, the defendant would not be permitted to deny knowledge of the contents thereof. .To the giving of this instruction, and to the modifying of the instruction asked by defendant, defendant excepted.

The modification of the defendant’s instruction complained of was in the court’s adding to the clause in the instruction reading as follows, “and if the jury believe, from the evidence, that such representations were false, and made with fraudulent intent, to induce defendant to sign, and plaintiffs added to said alleged copies material conditions, hereinafter named, not contained in the original draft, and not known or consented to by the defendant, then such contract was not binding upon the defendant,” the following limiting clause, to-wit: “Unless ratified by him-after knowing the fraud, if the jury, from the evidence,-should so find.” It is contended that there is no evidence in the record -tending to support this qualification of the defendant’s instruction, but in fact there is evidence tending to show that some time after the first quarter’s royalty fell due by the terms of the contract, appellees called upon appellant and demanded $75 claimed to be due for the quarter. Appellant denied his liability to them for any quarterly payment, when appellees told him to look at his contract. No payment was, in fact, made at the time, and appellant swears that he did not look at his contract for a number of months after this interview. This evidence, however, tends to show that within a comparatively short time after the execution of the contract the precise point about which the parties now dispute, to-wit, the question of the absolute liability of the appellant to pay quarterly the royalty upon 2500 dozen pinchers annually, came into dispute between them. We think there was enough in the testimony in this respect to justify the court in making the qualification of the defendant’s instruction complained of, and that such qualification was not erroneous.

As to the instructions given for appellees, and complained of by appellant, we think there was no error/ The doctrine is well settled, that, as a rule, a party guilty of fraudulent conduct shall not be allowed to cry “negligence, ” as against his own deliberate fraud. Even where parties are dealing at arms’ length, if one of them makes to the other a positive statement, upon which the other acts (with the knowledge of the party making such statement) in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the party guilty of fraud can take no benefit. While the law does require of all parties the exercise of reasonable prudence in the business of life, and does not permit one to rest indifferent in reliance upon the interested representations of an adverse party, still, as before suggested, there is a certain limitation to this rule, and, as between the original parties to the transaction, we consider that where it appears that one party has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other party has been misled, or influenced in his action, he can not escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care. / But the instruction in this case in nowise invades this rule. By the express terms of the agreement to which appellant swears he did assent, appellant bound himself to manufacture and sell 2500 dozen pinchers per year, and to pay thereon, quarterly, a royalty of $1.44 per gross. Between such an undertaking and the agreement sued on, to-wit, that the appellant would pay royalty on 2500 dozen pinchers per annum, at the rate of $1.44 per gross, payable quarterly, there is no such material difference as to import fraud, or as to lead to the conclusion that had this contract been fully read by appellant before signing he would have refused his signature thereto. The obligation to pay $300 per annum at least, was as positive under the original draft of the agreement as under that finally executed between the parties, although the phraseology differs.

The modification of the contract, making payments for royalties payable quarterly, seems to have been affirmed and acquiesced in after that change was brought to appellant’s attention. The modification of the language requiring the payment of royalties on a given number of pinchers, instead of requiring the manufacture of the same number each year, and the payment of a royalty on each, did not change the legal effect of the contract to appellant’s injury.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Frank Grundies v. Simon Reid et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1- Recording act—how far a protection to purchasers—where one appearing to hold title by one name is also known by another name— notice. The record of deeds, etc., showed a perfect title to certain lots in Oonrad Eickenberg, and no judgments against him. He effected a loan of money on the lots by giving a deed of trust thereon, the lenders having the abstracts of title examined by an experienced attorney, who pronounced the title good, under which trust deed the creditors acquired the title by foreclosure. It was held, in the • absence of any satisfactory proof of notice to the parties making the loan that Eickenberg was also known by the name of Charles, that they were protected against a title derived by sale on execution as to one of the lots under a prior judgment in favor of one Klickman and against Charles Eickenberg, although in fact Eickenberg was known by both names, Charles and Conrad, and the judgment was against Conrad by the name of Charles, the public record, however, not showing such latter fact.
    2. The law in this State protects purchasers of real estate in their purchase as the title appears of record, unless there be notice of something to the contrary; therefore, to affect the title of a purchaser from Conrad E., in whom the record showed title, by a prior judgment standing against Charles E., it is incumbent on the party deriving title by sale under that judgment to prove that the subsequent purchaser had notice that such judgment had been rendered against Conrad E. by the name of Charles E.
    3. Same—what will amount to notice. A party making a loan to Conrad E., on a deed of trust upon lots 19 and 20, the records showing him to own the same, had their attorney examine the abstracts of the title, on which was a note of a sale of lot 20 upon a judgment against one K. and Charles E,, which was marked satisfied: Held, that this fact was not notice that Charles E. and Conrad E. were one and the same person, or of the existence of another prior judgment against Charles E. and another, or sufficient to put a prudent man on inquiry. The reasonable presumption might be there had been a mistake in selling one man’s land on an execution against another. Bare suspicion will not raise an inference of a fraudulent intent.
    4. Where there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of facts which the res gestee would suggest to a prudent mind, or where mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser, then the purchaser will, in equity, be considered, as in fact he is, a bona fide purchaser without notice.

      5. Same—of what matters of record a purchaser must take notice. A purchaser is not chargeable with constructive notice of all instruments and incumbrances of record, but only of such as lie in the apparent chain of title, or may have been made by one in some way connected with the property involved in interest, and that brought home to the notice of the purchaser.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    This was a hill in chancery, brought by Frank Grundies, the appellant, in the circuit court of Cook county, against the appellees, on the 11th day of November, 1880, in which the complainant alleged that he was the owner in fee simple of lot 19, in block 55, in canal trustees’ subdivision of section 7, township 39 north, of range 14 east, of the third principal meridian, situated in the city of Chicago, and sought to have an alleged claim of title to the premises by part of the defendants declared invalid, and set aside as a cloud upon the complainant’s title.
    The claim of title of both parties is from and through one Eickenberg, whose real name was Conrad Eickenberg, but who was also known and called by the name of Charles Eickenberg. On July 21, 1865, one Griffin, having title to lot 19 in question, and the adjoining lot 20, in the same subdivision, conveyed both lots 19 and 20 to Eickenberg, by the name of Conrad Eickenberg, by a general warranty deed. On December 2, 1865, Eickenberg, by the name of Conrad Eickenberg, executed to L. C. Paine Freer a trust deed conveying both lots 19 and 20, to secure a loan of $4500 obtained from Eeid, Murdock & Fischer. On July 29, 1879, Freer conveyed both lots to Thomas Murdock, on a sale made under the power in the trust deed, and Murdock now holds the lots in trust for his firm of Eeid, Murdock & Fischer. This is the defendants’ claim of title. The complainant’s claim of title is as follows: In 1874 Eickenberg executed an appeal bond in the penalty of $10,000, as surety of Edward Wolf, by the name of Charles Eickenberg. An action of debt was brought on this bond in the Superior Court of Cook county by Frank Klickman, and at .the May term, 1875, a judgment was rendered in favor of Klickman, against Charles Eickenberg, impleaded with Edward Wolf, for $10,000 debt, to be discharged on the payment of $220 damages, and costs of suit. On this judgment an execution was issued and levied on lot 19, and the same was sold thereunder to Frank Klickman for $251.34, on March 25, 1876, and the sheriff’s certificate of purchase issued to him, which he afterwards sold and assigned to the complainant, Frank Grundies. On January 24, 1878, the sheriff of Cook county executed to Grundies, as assignee of the certificate of purchase, a sheriff’s deed, conveying to him lot 19.
    The evidence in the case shows that Eeid, Murdock & Fischer had no acquaintance with or khbwledge of Eickenberg previous to the time of making their loan to him; that they were applied to by a loan broker for the loan of $4500 to Conrad Eickenberg, and the abstracts of title to the property in question to secure the loan, which were submitted, they had examined by Mr. Freer, an experienced lawyer, who pronounced the title good in Conrad Eickenberg, as shown by the abstracts, whereupon they made the loan, taking the.trust deed upon this property to secure it. The abstracts which Mr. Freer examined, consisting of consecutive examinations made by prominent abstracters in Chicago in the usual way, show a number of mortgages or trust deeds to have been made by Conrad Eickenberg and his wife, and the making of release's thereof, and also quitclaim deeds, by other parties to' Conrad Eickenberg. There is no mention anywhere in the abstracts of any “Eickenberg” having any connection with the title to the premises except Conracl Eickenberg, nor is there any other Eickenberg except Conrad Eickenberg named in the line of the title to the property. The abstracters certify that they find no judgments against Conrad Eickenberg,' at any time, which are liens on said land. The abstract had noted on it a judgment rendered in the circuit court of Cook county July 27, 1874, by confession in favor of the Traders’ National Bank of Chicago, against August Klenke and Charles Eickenberg, for $552; that an execution had been issued on that judgment, and that the sheriff had levied on and sold to Joseph 0. Butter, the president of the bank, all the interest “of said defendant” in and to lot 20, block 55,—that being one of the lots embraced in the trust deed, but not the lot in question,—and across the face of the entry of this judgment is written: “This judgment satisfied in full, December 29, 1875; Jacob Gross, clerk. ” At the foot of the certificate of sale to Butter is the note: “No examination made for judgments against Charles Eickenberg. ” On final hearing, upon proofs taken, the circuit court dismissed the bill, and the complainant appealed.
    Messrs. Forrester & Felsenthal, for the appellant:
    If a purchaser has sufficient information to lead him to a knowledge of a fact, he is deemed in law to be cognizant of the fact, and possession of the land is notice to the purchaser of the possessor’s title. McConnel v. Reid, 4 Scam. 117; Doyle v. Teas, id. 625; Morrison v. Kelly, 22 Ill. 625.
    Whatever is sufficient to put a person on inquiry will be notice of all other facts that such inquiry would have revealed. Cox et al. v. Milner, 23 Ill. 422. See further as to what is notice, Shepardson v. Stevens, 71 Ill. 646; Preston v. Williams et al. 81 id. 179; Babcock et al. v. Lusk, 57 id. 329; Slattery v. Rafferty, 93 id. 281; Ogden et al. v. Haven et al. 24 id. 60.
    Mr. Frank J. Crawford, for the appellees:
    There was no evidence that there was any direct communication to appellees Beid, Murdock & Fischer, or to Mr. Freer, that Conrad Eickenberg and Charles Eickenberg were one and the same person. There is no such relation between the names Conrad and Charles as to justify the use of one for the other. They are of different derivation, and are certainly not idem sonans; and while it is true, as a matter of law, that two Christian names, although they differ in sound, are not variant where they are of the same derivation, as, Piers and Peter, Saunders and Alexander, Jane and Joan, J ean and J ohn; yet if the names are of different derivation, or “different in baptism,” as, Agnes and Ann, Isabel and Sibil, James and Jacob, they are variant. Myers v. Fegally, 39 Pa. St. 431; 2 Roll. Abridgment, 135, 136.
    For a statement of the law of constructive notice, see Jones v. Smith, 1 Hare’s Ch. *55; Sugden on Vendors, (14th ed.) chap. 24, sec. 1; Dey v. Dunham, 2 Johns. Ch. 182; McMechan v. Griffing, 3 Pick. 149; Shirley v. Phillips et al. 17 Ill. 471.
    Constructive notice, flowing exclusively from matters of record, ean never be construed to be more extensive or broader than the facts stated in the record. Gale v. Morris, 29 N. J. Eq. 222; Carbine v. Pringle, 90 Ill. 302.
    Purchasers are not bound to look beyond the judgment or decree, and the legal effect it may have on the title which is the subject of inquiry. Dugan et al. v. Follett et al. 100 Ill. 590. See, also, Jenkins v. Rosenberg et al. 105 Ill. 157.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the time (December 2, 1875,) Reid, Murdock & Fischer made a loan to Conrad Eickenberg of $4500, and took from him a trust deed on the lot 19 in controversy, and lot 20, to secure the loan, the public records showed a perfect title to the property to be in Conrad Eickenberg. Against such apparent title appellant claims to have a paramount title, derived under a judgment against Charles Eickenberg, rendered on May 22, 1875. Apparently they are different persons, and a judgment against Charles Eickenberg would not affect the title to land in Conrad Eickenberg. But the evidence shows that Conrad Eickenberg was sometimes known and called by the name of Charles Eickenberg, and that the aforesaid judgment was in fact rendered against Conrad Eickenberg by the name of Charles Eickenberg. The public records do not show this. Our law protects the purchasers of real estate in their purchases of the same as the title appears of record, unless there be notice of something to the contrary. In order, then, to affect appellees’ title' derived from Conrad Eickenberg by a prior judgment standing against Charles Eickenberg, it is incumbent on appellant to make proof that at the time Eeid, Murdock & Fischer took their trust deed from Conrad Eickenberg they had notice that such judgment had been rendered against Conrad Eickenberg by the name of Charles Eickenberg. As before said, the records show nothing of this. There is no pretense of any actual notice. If Eeid, Murdock & Fischer were chargeable with any notice, it Avas merely constructive notice,—such notice, only, as the laiv would imply from other facts and circumstances.

The evidence in the ease establishes clearly that Eeid, Murdock & Fischer, or Mr. Freer, their attorney, had no knoAviedge or information whatever, at the time of the making of the loan and of the execution of the trust deed, of Eiekenberg ever having been called or knowm by any other name than Conrad Eickenberg, or of the existence of the Klickman judgment,—the one under which appellant claims,—against Charles Eickenberg, or of its being claimed that the judgr ment ivas a lien on the property of Conrad Eickenberg. All that we find in the entire evidence which can be claimed as showing any notice, is what appeared in the abstract examined by Mr. Freer of the note of a sale of lot 20,—one of the two lots embraced in the trust deed,—to Eutter, upon a judgment in favor of the Traders’ National Bank, which had been rendered against one August Klenke and Charles Eickenberg, and it is the only question in the ease, as we regard, whether that circumstance constituted notice of the exist-' ence of the Kliekman judgment rendered against Conrad Eickenberg by the name of Charles Eickenberg.

That note on the abstract showed, to be sure, that lot 20, one of the two lots which Reid, Murdock & Eischer were about to take a trust deed of from Conrad Eickenberg, but not the lot in question, had been sold on a judgment against August Klenke and Charles Eickenberg; But might not a purchaser of ordinary prudence say, what of that ? and dismiss the matter without further thought. He would see that it was a ease of selling one man’s property on an execution against another man, and that it would not affect the title at all. Charles Eickenberg and Conrad Eickenberg were apparently different persons. There was no such relation between the names as to indicate that they were one and the same person. The title to the lots was in Conrad Eickenberg, and his title could not be affected by a sale of one of them' under an execution against Charles Eickenberg. ■ We think an intending purchaser might so conclude, and act in entire good faith, without inquiring further. Had the judgment and execution been against August Klenke alone, and the sale of lot 20 been under such execution, it would seem clear that Reid, Murdock & Eischer would not, from that circumstance, have been put upon any inquiry how the lot came to be thus sold. The judgment and execution being against Charles Eickenberg, as well as Klenke, would seem to differ the ease but little. There would be the essential thing that the judgment and execution were not against the same person, apparently, as the one who held the title. Erom this circumstance, noted in the abstract, there would be no necessary inference that’ Conrad Eickenberg and Charles Eickenberg were one and the same person, and so put a purchaser from Conrad Eickenberg upon an examination whether there were not judgments against Charles Eickenberg. Other presumptions might be indulged, as, that there had occurred a mistake in selling one man’s land on an execution against another person, or that there had been some misapprehension about the name, in that one particular case, in rendering judgment against Conrad Eickenberg by the name of Charles Eickenberg. But in McMechan v. Griffin, 3 Pick. 154, it was said, with reference to notice of an unregistered deed: “The fact of notice must be proved by indubitable evidence,—either by direct evidence of the fact, or by proving other facts from which it may be clearly inferred. It is not, in such case, sufficient that the inference is probable,— it must be necessary and unquestionable.”1

Whether there may not be a greater strength of proof required to affect a purchaser with notice of an unregistered deed than in other eases, as has been held, we will not stop to consider. In Doyle v. Teas, 4 Scam. 250, the principle of the distinction was doubted. Appellant’s counsel remark upon the supposed fact that Mr. Freer, the attorney of Beid, Murdock & Fischer, caused entry of the satisfaction of the Traders’ bank judgment to be made at the time of the loan, as evincing knowledge that that judgment was a lien on lot 20; but there is no evidence of that fact. Mr. Freer testifies, explicitly, that he had no knowledge of the satisfaction of that judgment, and all that the evidence shows on the subject is, that Butter’s understanding was, the judgment was paid from the proceeds of the loan. It is not lot 20, which was sold under the judgment in favor of the Traders’ bank, that is involved here, but lot 19, sold under the Klickman judgment, and it is this Klickman judgment against Charles Eickenberg in regard to which it is necessary to make proof of notice. All, we think, that can be said as to the sale of lot 20, one of the two lots Eickenberg had title to, under a judgment and execution against Charles Eickenberg, is, that it was a suspicious circumstance, which might have led a person of extreme caution to inquire and find out how it had come that that lot had been sold on an execution against some one else. But suspicion is not enough. As said in McConnel v. Reed, 4 Scam. 123, “bare suspicion will not raise an inference of fraudulent intent. ” The point of inquiry here, is, whether this note on the abstract of the sale of lot 20, under a judgment against August Klenke and Charles Eickenberg, was a circumstance sufficient to charge Reid, Murdock & Eischer with notice that Conrad Eickenberg went by the name of Charles Eickenberg as well as Conrad Eickenberg, and to impose upon them the duty of examination as to judgments against Charles as well as against Conrad Eickenberg,—whether it was a circumstance which would have led a man of ordinary prudence and caution to make inquiry in regard to that fact, and that the not doing so was gross negligence, and of the character of fraudulent intent. In a discussion of this subject of constructive notice, by Vice Chancellor Wigeam, in Jones v. Smith, 1 Hare’s Ch. 55, he thus remarks: “If, in short, there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of facts which the res gestee would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser,—then the doctrine of constructive notice will not apply; then the purchaser will, in equity, be considered, as in fact he is, a bona fide purchaser without notice. This is clearly Sir Edward Sugden’s opinion, and, with that sanction, I have no hesitation in saying it is mine also.” In Ware v. Lord Egmont, 4 De G. M. & G. 473, the Lord Chancellor Gbanwobth, in giving judgment, said: “The question upon constructive notice is not whether the purchaser had the means of obtaining, and might, by prudent caution, have obtained, the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence.” And see 2 Sugden on Vendors and Purchasers, (14th ed.) 571, 572; Doyle v. Teas, 4 Scam. 202.

But further, we do not see that any notice with respect to lot 20 would impose upon appellees any duty toward one having interest only in lot 19. As regards such person, all its significance would appear to be in its affording a presumption that therefrom appellees were led to make inquiry and actual ascertainment of the fact that Eickenberg was known and called by the name of Charles, as well as by the name of Conrad. But when proof positive is made, as it was here, that appellees were not led to make such inquiry, and never did have any knowledge whatever of Conrad being known or called by the name of Charles, or of any judgment ever being rendered against Conrad by the name of Charles, it destroys the presumption, and all effect of the notice would seem to be done away with. Charles Eickenberg apparently is not connected of record with the title. We have frequently decided that a purchaser is not chargeable with constructive notice of all. instruments and incumbrances of record, but only of such as lie in the apparent chain of title, or may have-been made by one in some way connected with the property involved in interest, and that brought home to the notice of the purchaser. Manly v. Pettee, 38 Ill. 128; Irish v. Sharp, 89 id. 261; Carbine v. Pringle, 90 id. 302.

Finding no error in the decree, it must be affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Chicago, Pekin and Southwestern Railroad Company et al. v. The Town of Marseilles.

      Filed at Ottawa May 10, 1883

      Rehearing denied -September Term, 1883.

    1. Practice—motion for new trial before a judge other them the one who tried the case. After the entry of judgment in a cause, but during the trial term, the unsuccessful party entered bis motion for a new trial, before a judge other than the one who presided at the trial of the case. No application was made for a continuance of the motion. It was held, the judge before whom the motion for a new trial was thus pending, although he had not presided on the trial of the cause, had rightful authority to deny the motion, and it was not error to do so.
    2. In such case, the party seeking the new trial, by making an application for a continuance of his motion, supported by a proper affidavit showing sufficient cause, might have had the mbtion for a new trial postponed to some day when it could be heard by the judge who tried the case. But a motion of this kind ought not to be postponed beyond the trial term, except for good cause shown.
    3. Bill oe exceptions— by whom to be signed, -where a motion for a new trial has been overruled by a judge other than the one who tried the case. Where a motion for a new trial is denied by a judge of the court other than the one who presided at the trial, and an appeal is granted, with leave to file bond and bill of exceptions within thirty days, the judge who tried the cause will be authorized to sign the bill of exceptions, and if none is tendered to him, it is the appellant’s own fault that he could not obtain the judgment of the Appellate Court'as to the sufficiency of the evidence to support the verdict.
    4. The proper practice would seem to be, where two judges preside at different times during the trial, or other disposition of a cause, that each should give a bill of exceptions -concerning the matters which transpired before him.
    5. Same—when necessary—presumption in favor of judgment. In the absence of a bill of exceptions showing the evidence on the trial, it will be presumed that a motion for a new trial was properly overruled, and an affirmance of the judgment by the Appellate Court is proper.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Leland & Gilbert, for the appellants.
    Messrs. Blanchard & Blanchard, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

It appears from the record that a trial was had in this cause on the 10th day of November, 1881, before George W. Stipp, presiding judge, and a jury. The action was debt, upon an appeal bond. The only plea upon which issue was taken was non est factum. The trial resulted in a verdict and judgment against the defendants,—appellants here. Upon the return of the verdict, November 10, (the day the trial was had,) no motion was entered for a new trial, and the court rendered judgment on the verdict. At a subsequent day of the term (December 10) Judge Stipp was absent and Judge MeEoberts was presiding. Counsel for defendants entered a motion for a new trial, which was heard and overruled. An appeal was taken to the Appellate Court, and the following errors assigned: First, the court below erred in overruling the motion of appellants for a new trial; and second, the court below erred in not granting a new trial and in not setting aside the judgment. The Appellate Court affirmed the judgment of the circuit court, and to secure a reversal of that judgment this appeal was taken.

It is not claimed in the argument that any substantial ground existed for a new trial, but the point, and only point, relied upon to reverse the judgment is, that Judge MeEoberts had no authority to hear and pass upon a motion for a new trial in a case which had been tried before Judge Stipp,— or, to state the question in the language of counsel for appellants, can a circuit judge properly overrule a motion for a new trial of a cause tried before another circuit judge. Had appellants entered a motion for a continuance of the motion for a new trial, and supported the motion by a proper affidavit showing sufficient cause, it might have been the duty of the then presiding judge to have ordered a continuance of the motion to some future day when it could be heard by the judge who tried the cause; but a motion of this character ought not to be postponed beyond the term at which the cause is tried, unless good cause is shown. Should a motion for a new trial be made on the last day of the term, for mere delay, where a term of court had been held by two judges, as here, it would be manifestly unjust to order a postponement of the hearing of the motion to a subsequent term of court; and yet such might be the result in many cases, if a continuance of the motion could be granted without cause being shown by proper affidavit.

It is said appellants have been denied the right to have the court review the evidence and determine whether it sustained the verdict. If such is the case, they alone are to blame. Had they entered the motion for a new trial when the verdict was' rendered, the judge who tried the cause could then have decided the motion for a new trial, or had they entered a motion for a continuance of the motion, and. supported it by proper affidavit, as stated before, the same result might have been reached. If, then, appellants have been denied a right conferred by law, they alone are to blame, and courts are not organized to relieve parties of their own negligent acts.

It is also contended that appellants have been denied the right to have the Appellate Court, on appeal, determine whether the verdict is, sustained by the evidence. This is a clear misapprehension of-the true situation of the case. When the motion for a new trial was overruled, appellants prayed an appeal, and obtained an order for leave to file bond and bill of exceptions' in thirty days. Under this order, had they prepared a bill of exceptions containing all the evidence introduced on the trial, the judge who tried the ease was authorized' to sign the bill of exceptions; but he was never requested to sign a bill of exceptions. It was, therefore, not the fault of the judge who tried the case, or the judge who overruled the motion for a new trial, that appellants did not obtain the judgment of the Appellate Court on the question whether the verdict was sustained by the evidence. No reason is perceived which would prevent Judge Stipp from signing a bill of exceptions which would show every step taken in the case before him, and Judge McEoberts could also sign a bill of exceptions showing all the proceedings in the case before him. Indeed, this would seem to be the proper practice where two judges preside at different times during the trial or disposition of a cause. As the case was, however, presented to the Appellate Court, this court could not have done otherwise than affirm the judgment.

While it is true one judge presided at the trial and another passed on the motion for a new trial, the court was all the time one and the same court. It had jurisdiction of the subject matter and of the parties, and, in the absence of a bill of exceptions containing the evidence heard on the trial, the presumption is that the motion for a new trial was properly overruled. But whether the motion was properly overruled or not does not affect the decision of the question presented by this record. If Judge MeRoberts had the power to pass upon the motion, appellants have no standing here. It was purely a question of power. MeRoberts was one of the three circuit judges of the circuit in which the cause was tried, and in the discharge of his duties as circuit judge he possessed the same and all the judicial powers which were possessed by the judge who presided when the cause was tried.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Soholfield Per Curiam :

text:
    Noah Barnes v. John R. Brookman et al.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1, Pleading over—waiver of demurrer. By pleading over a defendant waives bis demurrer to tbe declaration, and can not thereafter assign on any ruling in regard to it.
    2. Amendments and jeofails—defective pleading cured after judgment. If no motion is made in arrest of judgment, section 6 of tbe Statute of Amendments prevents a reversal “for any mispleading, insufficient pleading,” etc. Tbe rule is, a verdict will aid a defective statement of title, but will never assist a statement of a defective title or cause of action.

      3. Bond—good as a common lato obligation, though not in compliance with the statute. An obligation entered into voluntarily, and for a sufficient consideration, unless it contravenes the policy of the law, or is repugnant to some provision of the statute, is valid at common law, notwithstanding the . attempt may have been to execute it pursuant to a statute with the terms of which it does not strictly comply.
    4. Injunction bond—of its conditions. It has been held, in case of enjoining the collection of a promissory note, the statute prescribes no rule in regard to the conditions to be inserted in the bond, and that the chancellor or master may, hence, in the exercise of a reasonable discretion, require the complainant to give security for the payment of the debt, in case he fails to maintain his suit.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of' Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    This was an action of debt, in the Superior Court of Cook county, by appellees, for the use of William C. Minard, against appellant and Abraham Moses, on a bond, of which the following is a copy:
    “Know all men by these presents, that we, Abraham Moses and Noah Barnes, of the county of Cook, and State of Illinois, are held and firmly hound unto John B. Brookman and T. M. Bradley, of the same county and State aforesaid, in the sum of $1200, to be paid to the said John B. Brookman and T. M. Bradley, their executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves jointly and severally, and our respective heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated this éth day of May, A. D. 1872.
    “Whereas, the above bounden Abraham Moses has filed his bill of complaint in the Superior Court of Cook county, and State of Illinois, against the above named John B. Brookman and T.- M. Bradley, praying, among other things, for an injunction to restrain said T. M. Bradley from taking any further steps towards the enforcement of a judgment entered against Abraham Moses by said John B. Brookman, in the Superior Court of Cook county, December 21, 1871, or from levying on any of said Moses’ property, or intermeddling with the same, under any execution issued under said judgment, and to restrain said Brookman from disposing of three other promissory notes given by Abraham Moses and Martha Moses to John R. Brookman; and whereas, said court has allowed an injunction for that purpose, according to the prayer of said bill, upon the said Abraham Moses giving bond and security as provided by law:
    “Now, therefore, the condition of the above obligation is such, that if the above bounden Abraham Moses and Noah Barnes, their executors or administrators, or any of them, shall and do well and truly pay, or cause to be paid, to the said John R. Brookman and T. M. Bradley, their heirs, executors, administrators or assigns, the sum of $1200; and also all such costs and damages as shall be awarded against the said complainants in case the said injunction shall be dissolved, then the above obligation to be void; otherwise to. be and remain in full force and effect.
    (Signed) A. Moses, [Seal.]
    Noah Barnes. [Seal.] ”
    The bond was executed to obtain a writ of injunction, which was thereupon issued, enjoining and restraining said John R. Brdokman and Timothy M. Bradley from taking any further steps toward the collection and enforcement of a certain judgment note upon which judgment ivas entered in the Superior Court of Cook county, December 21, 1871, in favor of John R. Brookman, against Abraham Moses, in the sum of $557.57, etc., and enjoining and restraining John R. Brookman from entering up judgment against Martha Moses on a certain judgment note for $500, upon which judgment had already been entered up against Abraham Moses, as aforesaid, or from transferring said judgment, and from transferring, assigning or selling, or entering up judgment on three promissory notes, for $500 each, given by Abraham Moses and Martha Moses, and held by said John B. Brookman, etc.
    The injunction was dissolved, but no damages were awarded by the court. The order of dissolution is as follows, omitting the caption: “This day come the complainants hereto, by * * * their solicitors, and the defendants, by * * * their solicitors, also come. And thereupon the said defendant submits his motion herein to dissolve the injunction heretofore granted in this cause, and the court now here, after hearing affidavits read in support of the same, and in the opposition thereto, and being fully advised in the premises, sustains said motion, and it is ordered by the court that the said injunction be and the same is hereby dissolved.”
    The defence of accord and satisfaction was interposed, but inasmuch as no question arising thereon is discussed in the opinion, it is unnecessary to set out the evidence arising thereon.
    The cause was submitted to and tried by the court without the intervention of a jury, by agreement of parties. The court rendered judgment for plaintiffs for $1200 debt, and $1200 damages, and costs of suit. On appeal from this judgment to the Appellate Court for the First District it was affirmed. This appeal is from that judgment.
    Mr. George H. Leonard, for the appellant.
    Mr. Charles H. Crawford, for the appellees.
   Mr. Justice Soholfield

delivered the opinion of the Court:

The only question sought to be raised upon this record relates to the amount of damages embraced by the judgment of the Superior Court. That some amount was recoverable is not questioned; it is simply controverted that the amount could be, under the evidence, equal to the full penalty of the bond. By pleading over the defendants waived their demurrer, and could not thereafter assign error on any ruling in regard to it. (American Express Co. v. Pinckney, 29 Ill. 392; Walker et al. v. Welch et al. 14 id. 277.) No motion in arrest of judgment was made, and the statute (Bev. Stat. 1874, sec. 6, chap. 7, title, “Amendments and Jeofails, ”) prevents a reversal “for any mispleading, insufficient pleading,” etc. No objection was taken to the admission of evidence, nor was any motion made to exclude evidence after it was admitted. No proposition of law was submitted to and passed upon by the court, and it is not shown that any question of law was distinctly presented to the court by the motion for a new trial, which was passed upon by the court in overruling that motion. The question, therefore, upon which we are asked to pass is purely one of fact.

But the finding of the Appellate Court is conclusive on all such questions, and it is of no moment how great or how slight may be the evidence the one way or the other, provided only the question is purely one of fact, to be determined from the preponderance of the evidence. Edgerton v. Weaver et al. 105 Ill. 43.

The judgment is affirmed.

Judgment affirmed.

Subsequently, on an application for a rehearing, the following additional opinion was filed:

Per Curiam :

A petition praying for a rehearing in Ibis case is presented to us, based upon the assumed ground that we have, in the opinion heretofore filed, misapprehended appellant’s position, and it is therein said: “Appellee concedes that if appellant was entitled to recover anything, he should have obtained judgment for the full amount of the penalty of the bond. ” This, then, presents only the question whether the bond is void upon its face; for if it is valid, there can, of course, be some recovery under it.

We have several times held that an obligation entered into'voluntarily, and for a- sufficient, consideration, unless it contravenes the policy of the law, or is repugnant to some provision of the statute, is valid at common law, notwithstanding the attempt may have been to execute it pursuant to a statute with the terms of which it does not strictly comply. Pritchett v. The People, 1 Gilm. 525; Fournier v. Faggott, 3 Scam. 347; Ballingall v. Carpenter, 4 id. 306; Todd v. Cowell, 14 Ill. 72. This bond was voluntarily entered into. It was entered into upon consideration of the issuing of a writ of injunction, which is, beyond all question, a sufficient consideration ; and it is not pointed out in argument, and we are unable to perceive of our own motion, wherein it contravenes the policy of the law, or is repugnant to any statutory-provisions. Indeed, we have held, in case of enjoining the collection of a promissory note, the statute prescribes no rule in regard to the conditions to be inserted in the bond, and that the chancellor or master may, hence, in the exercise of a reasonable discretion, require the complainant to give security for the payment of the debt, in case he fails to maintain his suit. Billings v. Sprague, 49 Ill. 509.

Whether this bond is to be regarded as penal or absolute, we are, both by the concession of appellant and the fact that as the record comes before us wre can consider such questions only as may be entertained on error, relieved from inquiring into. At most, here, there was but a defective statement of the plaintiff’s cause of action, and the rule is, a verdict will aid a defective statement of title, but will never assist a statement of a defective title- or cause of action. 1 Chitty’s Pleading, (14th Am. ed.) 680, *681; 2 Tidd’s Practice, (3d Am. ed.) 918, *919.

The rehearing is denied.


author: Mr. Justice Mueket

text:
    Patrick J. Sexton v. The City of Chicago.

      Filed at Ottawa June 16, 1883

      Rehearing denied September Term, 1883.

    1. Practice—trial by the court—degree of evidence required, to support a proposition of law. In the ease of a trial by the court without a jury, if there is evidence in the record tending to establish the hypothetical case made by a proposition of law based thereon, the court should give the same, if otherwise unobjectionable. It is not necessary there should t>e a preponderance of evidence to warrant the making of such proposition.
    2. Building contract—reference to plans and specifications—how far controlling the rights of the parties. A city had, prior to letting contracts for furnishing materials and doing work on a proposed city hall, through its architect and draughtsman, prepared a general plan of the building, consisting of numerous drawings and specifications, showing, in distinct views or subordinate plans, the different parts of the building, and the different kinds of work and material required, and the manner in which the same was to be done, and also, with a view of facilitating bidding on the different parts of the work, and for the purpose of furnishing each contractor after the work was let with a distinct plan relating mainly to his own work, caused a number of copies or duplicates of the subordinate plans of the work to be prepared, some of them showing the stone work, and others the iron work, and so on, and advertised for bids for the several parts of the work. From the copies or duplicates shown him on file, a contractor bid on the iron work, which bid was accepted, and a formal contract was entered into between him and the city, in which the city reserved the right to forfeit the contract, or any part of it, for any breach or default on the part of the contractor in its performance, and furnished him the same plans and specifications to be used by him in doing the work: Held, in an action by the contractor to recover upon a quantum meruit, that the reference in the contract to the plans and specifications was to be understood as meaning those upon which the plaintiff made his estimate and which were so furnished to him, and that the city had no right to declare his contract forfeited for his refusal to do work not shown on such plans and specifications, or furnish materials different from those therein shown, although the architect of the city may have omitted to copy therein some changes made in the originals, and that the plaintiff was entitled to recover.
    3. If there are differences in the several sets of plans furnished by the owner as a guide for the estimates of work proposed to be let, and a bidder uses the set furnished him by the agents of the owner for making his estimates and bid, and a difference between him and the owner arises as to the amount and quality of the work let, he having made his bid on the plans submitted to him, which was accepted, and was' made the basis of the contract, the words “plans,” “diagrams” and “drawings” in the contract entered into upon such bid will be held to refer to the plans, etc., so furnished to him by the owner, and if such plans, etc., differ from the originals, it will be the fault of the owner or his agent, and advantage of such difference can not be taken, to the prejudice of the contractor.
    4. Same—deficiency in specifications—how far it will exonerate the contractor from doing certain portions of the work. Where a contract to furnish the materials for the iron work of a building, and do the work necessary, refers to plans and specifications which show only openings for sky-lights, giving no sizes, weights or data to guide in their construction, so that the contractor can not make them without additional plans and specifications, the construction of such sky-lights can not be held to have been included in the letting and contract, and the contractor may well refuse to make the same.
    5. Action—right to recover on quantum meruit. In such case, whether the party letting the work is estopped from denying the correctness of the plans so furnished, and therefore had no right to declare a forfeiture of the contract, or whether, by reason of the mutual mistake caused by the negligence in not furnishing correct copies of the plans, etc., no contract was created, is unimportant to decide, as in either case the contractor is entitled to recover on a quantum meruit for the materials furnished and his labor. The contractor has a right to acquiesce in the forfeiture and recover the value of his services and materials.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Leonabd Swett, and Mr. John N. Jewett, for the appellant:
    The reference in the contract to “the plans, diagrams and specifications” made and prepared for the work, refers to those furnished the plaintiff, and upon which he» made his hid. He had a right to take them as duplicates of those on file.
    Upon a breach by one of the parties to a special contract, the opposite party may recover for labor performed under it upon a quantum meruit. Huntly v. Butts, 1 Scam. 410; Her

      rington v. Hubbard, id. 569; Read et al. v. Phillips et al. 4 id. 42; Bannister v. Read, 1 Gilm. 98; Selby v. Hutchinson, 4 id. 319; Webster v. Enfield, 5 id. 299 ; Wilson v. Bauman et al. 80 Ill. 494; Schillo v. McEwen, 90 id. 79.
    The city having furnished to Sexton a tracing from the original plan in the office, showing the dimensions and weight of the iron rafters, as a plan for him to bid upon, and after-wards having given'him‘said tracing as a plan to do the work by, if Sexton relied upon it as a true copy of the original plan, and did not know to the contrary until he had completed all the work he did, the city is estopped from proving that the original plan on file in the office is different from the tracing furnished Sexton to bid on and do the work by. 2 Smith’s Leading Cases, 711; Pickard v. Sears, 6 A. & E. 475; Hicks et al. v. Crams et al. 17 Vt. 455; Howes v. Spicer, 23 id. 509; Davis v. Bradley, 24 id. 54; Roe v. Jerome, 18 Conn. 138; Bushnell v. Church, 15 id. 419.
    Mr. Francis Adams, and Mr. B. S. Winston, Jr., for the appellee:
    It is the original plan, and not a tracing, to which the contract refers, and which must be consulted in every case of difference or dispute between the parties. Such a copy is not the original, and can not even be used as evidence when the original can be produced. King et al. v. Worthington et al. 73 Ill. 161; Nodin v. Murray, 3 Campb. 228; Chapin v. Siger, 4 McLean, 378; Marsh v. Hand, 35 Md. 123; Merritt v. Wright, 19 La. Ann. 91; Foot v. Bentley, 44 N. Y. 166; Goodrich v. Weston, 102 Mass. 362.
    The city is not estopped to deny the correctness of the tracing, for there is no element of willfulness or fraud shown, which is necessary before an estoppel arises. Davidson v. Young, 38 Ill. 152; People v. Brown et al. 67 id. 435; Tyler v. Bailey, 71 id. 34.

      Upon the point that appellant, if misled by the tracing, was so misled by his own negligence in not examining the original plan, he having had an opportunity so to do, and that in such case there is no estoppel, see Strong v. Livingstone, 8 Bradw. 436; Swannell v. Watson, 71 Ill. 456; Mead v. Munson, 60 id. 49.
   Mr. Justice Mueket

delivered the opinion of the Court:

This was an action of indebitatus assumpsit, brought by Patrick J. Sexton, the appellant, in the Superior Court of Cook county, against the city of Chicago, the appellee, to recover a balance claimed to be due for work done and materials furnished by him, and used and appropriated by the city in the construction of the iron work for the new city hall. To the declaration the city filed the plea of non assumpsit, and the cause, by agreement of parties, was submitted to the court without the intervention of a jury, resulting in a finding and judgment for the defendant. On appeal to the Appellate Court for the First District the judgment of the Superior Court was affirmed, and Sexton thereupon appealed to this court.

Notwithstanding the voluminous record before us, the real controversy in the case is confined to very narrow limits. As claimed by appellee, we have nothing to do with the controverted questions of fact raised by the pleadings or evidence in the case. They have all been settled adversely to the appellant, and we have no power or disposition to review them. While this is so, it is nevertheless the duty of this court to examine the evidence bearing upon the issues of fact thus determined, to see what principles of law were involved in the controversy, and whether they were properly applied by the trial court.

On the trial of this cause the court refused to hold certain propositions of law, which we think were appropriate to the facts in the case, and that in doing so there was error, for which the Appellate Court should have reversed the judgment. The refused propositions are as follows:

“6. If, in consequence of differences between the several sets of plans furnished by the city as a guide for estimates of the work then proposed to be let, and in consequence of the use by Sexton of one set of such plans so furnished to him for making his estimates, differences naturally arose between Sexton and the city as to the amount of work then to be let, and Sexton’s bid, made upon the plans submitted to him, was accepted by the city, and was made the foundation of the contract between the city and Sexton, which has been offered in evidence, then the words ‘plans,’ ‘diagrams’ and ‘drawings,’ mentioned in the contract,' should, as between Sexton and the city, be held to refer to the plans, etc., furnished by the city, upon which Sexton based his estimates and his bid, the differences in the sets of plans were the fault of the city or its officials, and the city can not take advantage of its own wrong, to the prejudice of Sexton.

“7. If the differences of understanding as to the amount of work to be done resulted from the cause and in’ the manner suggested in the last preceding proposition, then either the contract must be construed in accordance with the plans, etc., furnished to Sexton, and upon which he based his bid, or there was, as a matter of law, no contract between Sexton and the city, notwithstanding the signing of the paper purporting to be such contract; and in the latter case Sexton is entitled, in the present action, to recover the fair value of the work done and materials furnished by him, and which have been accepted by the city, upon the basis of a quantum meruit.

In order to fully understand these propositions and their legal relation to the ease in hand, it will be necessary to examine to some extent the evidence, bearing in mind the chief object in adverting to the testimony at all is to ascertain whether there is evidence in the record tending to establish the hypothetical case made by the propositions. We say “tending to establish,” for, as is well understood, it is not necessary there should be a preponderance of evidence to warrant the giving of such propositions, if otherwise unobjectionable. Our consideration of the evidence then being for the purposes stated, it will only be necessary to refer to such parts of it as, in our judgment, tend to establish the hypothesis in question.

It appears from the record that prior to the 30th of March, 1878, the city of Chicago, with the view of building a new city hall, had, by its architect and the draughtsmen under him, prepared a general plan of the building, which -consisted of numerous drawings and specifications, showing, in distinct views or subordinate plans, the different parts of the building, and the different kinds of work and material required in its construction, and the manner in which the same was to be done. These distinct views or sub-plans were also divided into sections, which were numbered in numerical order. The city had, also, prior to the date last above mentioned, with the view of facilitating bidding bn the different parts of the work, and, as we understand it, for the purpose of furnishing each contractor after the work was let' •with a distinct plan relating mainly to his own work, caused a number of partial copies or duplicates of these subordinate plans of the work to be prepared, some of them showing the. stone work, others the iron work, and so on, and also so much 'of the general plan as was necessary to show the relation of. the specific work to it, and that they, together with the general or original plan, were on file in the office of the department of public works belonging to the city, prior to and at the time the city advertised for the, letting of the work in controversy. On the day last mentioned, to-wit, on the 30th of March, 1878, the city advertised for bids on the stone, brick' and iron work of the building. The appellant, being a contractor by profession, and desirous of bidding on the iron work, applied at the proper office of the city and was furnished by the party then in charge of the office with one of the above mentioned duplicate plans of the iron work, for the express purpose of enabling him to make his estimates with a view of bidding on the work. Having made his estimates from the plan thus furnished' him by the city, on the 8th of the following month he made a formal bid, by which he offered to furnish the materials and do the iron work, according to plans and specifications, for the sum of $105,302.69, which was accepted by the city, and, on the 17th of the same month, a formal contract to that effect was drawn up and mutually executed by the parties, in which the city reserved the right to forfeit the contract, or any part of it, for any breach or default on the part of appellant in its performance. On thus letting the iron work to appellant, the city, in conformity with the general custom to that effect, furnished him with the same plan and specifications of the work which had been previously given to him to make his estimates by, to be used by him in doing the work under the contract. Under these circumstances he commenced and proceeded with the work to the entire satisfaction of the city, so far as the record shows, until he came to construct the roof, when the city, on the 22d of December, 1880, declared his contract forfeited, on two grounds: First, because appellant refused to furnish “T” iron rafters for the roof weighing from ten and one-fourth to thirteen and one-half pounds per lineal foot; and second, because he declined to furnish the materials and construct the superstructure of the sky-lights. The appellant then and now insists that a proper construction of his contract with the city did not and does not require him to comply with either of these demands, which were made the occasion of declaring a forfeiture of it.

The plans and specifications under which the work was let, having, by reference, been made a .part of the contract itself, it becomes a question of law whether the exactions of the city were well founded or not. • The entire work was to be done according to said plans and specifications, and upon turning to them, so far as they relate to sky-lights, we find they show the openings and iron frame work constituting the foundation for five sky-lights. We also discover certain lines passing across the openings, which indicate that sky-light superstructures of some kind were ultimately intended for the building, but no sizes, weights or other data are given to guide one, either in their construction or in estimating their cost, except the size of the openings. Had the appellant been forced to construct sky-lights, under the circumstances he would have been compelled to have either gotten up an additional plan and specifications for his employés to work by, or the city would have had to furnish them,—in neither of which cases would they have been constructed according to the plans and specifications on file in appellee’s office at the time the contract was entered into; and this, we think, conclusively shows the sky-lights were not embraced within the contract.

Moreover, it further appears that appellant, before putting in his bid for the work, called the attention of Mr. Jordan, to whom he had been referred by Cleveland, the city architect, to the fact, that while the plans and specifications did not give any data from which the character or cost of the superstructure of the sky-lights could be ascertained or inferred, yet the printed forms required by the city to be used in bidding for the work called for sky-lights; that upon having his attention thus called to the apparent repugnance between the form of the bid and the plans and specifications, Mr. Jordan told appellant, in substance, that the plans for the sky-lights were not then ready; that no sizes were marked on the plans then furnished, and consequently .he should not figure on them; that he was simply required to include in his hid what the city then asked him to do,—namely, that which was then Specified and shown hy the plans. Jordan at this time was in the employment of the city as draughtsman under Mr. Cleveland, the city architect, and in the latter’s absence the business of the office was under his supervision. Under these circumstances appellant, in making his estimates, allowed nothing for the superstructure of sky-lights, and the city clearly had no right to require him to make them, and his refusal to do so afforded no grounds for declaring a forfeiture of the contract.

The other ground for declaring a forfeiture of the contract is, in our judgment, equally untenable. The plan and specifications furnished appellant by the city, both for the purpose of making his estimates preparatory to bidding for the work, and of guiding him in its performance after the same was let to him, did not require him to furnish “T” iron rafters of the weight demanded by the city, but on the contrary required “T” iron rafters three and a half by four inches, weighing seven pounds per lineal foot, and no more.. This is not denied, but it is urged that the plan furnished appellant by the city for the purposes. above stated was but a copy, commonly called a “tracing,” and that it is not a true copy of the original or general plan from which all the other plans or tracings are taken, and that there being a discrepancy between the two, appellant must be held to have contracted to do the work according to the original plans, and not according to the real plans actually furnished him by the city to enable him to estimate the cost of the work and guide him in the performance of it under the contract. However plausible this theory may appear to be, by reason of its supposed analogy to certain general principles of law, which, for many purposes, distinguish original documents from mere copies, we do not regard it as either sound or just in its application to the facts in this case. The tracing copy, as it is called, furnished the appellant in this case, was, at the time, it was made, an exact copy of the original, so called, or at least the evidence tends to establish that fact. It was subsequently thought and determined by the city authorities that the “T” iron for the rafters was too light, and the original plan was changed by making it call for “T” iron weighing ten and one-quarter to thirteen and one-half pounds to the lineal foot, instead of seven, as required by it when first made. This change was made by Mr. Jordan under the supervision of the city architect, and, as he testifies himself, through inadvertence or neglect he failed to make the corresponding correction in • the tracing copies, which, as we have seen, were made expressly for the use of contractors and bidders. Thus it will be perceived the city is wholly responsible for the mistake out of which this entire controversy has arisen,—a mistake which makes a difference in the cost of the building of some $8000 or $10,000,—and yet the city seeks to fasten this whole loss on the appellant, who was in no sense to blame for it, but on the contrary it is the direct result of the city’s own negligence.

We do not understand the expression “plans and specifications, ” and other terms of like import, as used in the contract, have exclusive reference to the general plan from which the duplicate plans or “tracings” are made out. The latter, although for convenience are generally called “tracings, ” are nevertheless as clearly plans, within the meaning of the contract, to the extent of the work represented by them, as the original from which they are taken, and we think justice, honesty and fair dealing demand they should be so treated in giving a construction to the contract. As already seen, they were given by the city to appellant to make his estimates and do the work by, and he had a right to assume these were the plans referred to in the contract. And if, through the city’s negligence, a mistake occurred in making them out, the city must suffer the consequences.

To the suggestion appellant might have verified the plans given him by the general or original plan, we perceive no force in it. Those furnished him by the city were made especially for the use of contractors in making their estimates and doing the work by, and he had a right to assume they were correct, as he did.

Whether the city, under the circumstances, was estopped from denying the correctness of the plans thus furnished appellant, and for that reason had no right to declare a forfeiture of the contract, or whether, by reason of a mutual mistake, caused by the negligence of the city, as to the subject matter of the contract, no contract was created between them, it is not important to inquire, as in either case the law is with the appellant, and he therefore had'the right to acquiesce in the forfeiture of the contract, and proceed, as he did, upon a quantum, meruit for the materials and his services. Bishop on Contracts, secs. 186, 228, et seq.; Continental Bank v. Bank of Commonwealth, 5 N. Y. 575.

As already stated, we think the sixth and seventh propositions tendered to the court by appellant should have been held as the law of the case, and it is no answer to say, that as it will be presumed that all conclusions of fact were settled adversely to appellant, the judgment of the court was right, notwithstanding the error in refusing the propositions tendered, because it is clear the trial court,, by reason of entertaining an erroneous view of the law, as shown by its refusal to give the propositions in question, must have treated as irrelevant some of the evidence which we regard as material, and in this way it doubtless reached an improper conclusion.

For the errors indicated the judgment of the Appellate Court is reversed and the cause remanded, with directions to reverse the judgment of the Superior Court, and remand the cause for further proceedings in conformity with the views above expressed.

Judgment reversed.


author: Mr. Justice Walker

text:
    Frederick W. Wilcox v. The City of Chicago.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Master and servant—respondeat superior. A master is liable for injury to others caused by negligence of his servant while in the performance of acts within the line of his duty.
    2. Same—exception to the rule, as to liability of a city for negligent acts of members of its fire department. But cities are not liable for the negligent acts of the officers or men employed in their fire departments while in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior.

    3. This exemption from liability is placed by some of the authorities upon the ground that the service is performed by the corporation in obedience to an act of the legislature, and that the members of the fire department, although appointed and paid by the city, are to be regarded rather as officers of the city charged with a public service, than as servants of the city for whose conduct it is liable. But it is not essential, to the doctrine of exemption that the service should be performed in obedience to a positive requirement of the law. The exception to the rule obtains even where there is a merely voluntary exercise of a power given by statute, and may well rest upon the ground of public policy, which would forbid the existence of such liability.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Willaed & Dbiggs, for the appellant:
    A person standing in the relation of master to one he has selected as his servant from a knowledge or belief in his skill, and who can remove him for misconduct, and whose orders the employé is bound to receive and obey, is liable for his acts of negligence in the business entrusted to him, whether such servant has been appointed directly, or through the intervention of an agent. Quarman v. Bermet et al. 6. M. & W. 509; Milligan v. Hedge, 12 A. & E. 737; Rapson
      v. Cubitt, 9 M. & W. 710; Martin v. Temperly, 4 Q. B. 298; Reedle v. L. and N. W. Ry. Co. 4 W. G. & G. 255; Spaight v. Tedcastle, 6 App. Cases, 217. See, also, Hinde v. Wabash Nav. Co. 15 Ill. 72; West v. St. Louis, Vandalia and Terre Haute Ry. Co. 63 id. 545; Sproule v. Hemingway, 14 Pick. 1.
    If the appellee.had become an incorporated body involuntarily, then it might be deemed to be a part of the State sovereignty, the same as a town or county, and therefore would not be liable. Town of Waltham v. Kemper, 55 Ill. 346; White et al. v. County of Bond, 58 id. 297; Symonds v. Clay County, 71 id. 355.
    But an incorporated city holds a different relation, and is liable for the non-performance of any duty enjoined by positive requirement contained in the charter, or arising out of its' adoption, or the exercise of the powers therein conferred. Clayburg v. City of Chicago, 25 Ill. 535; City of Jacksonville v. Lambert, 62 id. 519.
    One of the duties of a municipal corporation arising out of the voluntary adoption of its charter, is to use reasonable care in the conduct of any w'ork which it undertakes, and the accomplishment of which is wdthin its corporate po~vver. City of Joliet v. Verley, 35 Ill. 58; City of Chicago v. O’Brennan, 65 id. 160; City of Chicago v. Powers, 42 id. 169; City of Chicago v. Turner, 80 id. 419; City of Chicago v. Joney, 60 id. 383; City of Freeport v. Isbell, 83 id. 440; City of Chicago v. Dermody, 61 id. 431.
    Mr. Julius S. Geinnell, for the appellee:
    A municipal corporation is not liable for the negligence of firemen, appointed and paid by it, who, when engaged in their line of duty, upon an alarm of fire run over a person in drawing a hose reel, etc. Dillon on Mun. Corp. secs. 964, 976; Fisher v. Boston, 104 Mass. 87; Jewett v. New Haven, 38 Conn. 368 ; Ogg v. Lansing, 35 Iowa, 495 ; Field v. Des Moines, 39 id. 575 ; Heller v. Mayor of Sedalia, 53 Mo. 159 ;
      McKenna v. St. Louis, 6 Mo. App. 320; Howard v. San Francisco, 51 Cal. 52.
    Firemen are not the agents or servants of the municipal corporation, but are public officers, agents or servants of the public at large, and the corporation is not responsible for their acts or omissions. Maximilian v. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 51; O'Meara v. Mayor, 1 Daly, 428; Hafford v. City of New Bedford, 16 Gray, 297.
    A city is not liable for the illegal and negligent acts of a policeman. Dillon on Mun. Corp. sec. 975; Odell v. Schrœder, 58 Ill. 353; Jewett v. New Haven, 38 Conn. 368.
    Messrs. Willard & Driggs,- in reply, reviewed the authorities' cited in behalf of appellee, insisting they were in cases where the legislature had required of the municipality that a fire department be established and operated in a manner generally prescribed in the act, and had no reference to a case like the present, where the action of the municipality in . that regard was purely voluntary,—not in obedience to any act of the legislature.
   Mr. Justice Walker

delivered the opinion of the Court:

This suit was brought' by appellant in the Superior Court of Cook county, against the city of Chicago, to recover damages sustained by appellant by a collision between his carriage and a hook and ladder wagon of the city, through the alleged neglect of the driver of the ladder wagon, whilst in the service of the appellee in saving property from destruction by fire. A general demurrer was filed’ to the declaration, and sustained by the court, and a judgment rendered against plaintiff for costs. The case was taken to the Appellate Court, and the judgment was affirmed, and it is brought tq this court, and the sustaining of the demurrer is assigned for error.

The question presented is, whether the relation of master and servant exists between the driver of the ladder wagon and the city, and it is responsible for the negligent acts of the driver whenever engaged in the performance of his duty under the ordinance of the city, or whether the relation is an exception to the general rule. It has long been settled, and perhaps never questioned, that the master is liable for injury from the negligent acts of his servant whilst performing acts within the line of his duty. But the whole^question here turns upon whether that relation exists.

Appellant contends that inasmuch as the city voluntarily undertook to, and did, organize a fire department, which is under the entire control of the city, and as it appoints its officers, pays them and the firemen, and discharges them through its officers, and the whole department is controlled, regulated, and its duties prescribed, by city ordinance, nothing more can be required to create the relation of master and servant between it and its employés. The department is as completely under the control of the city as the board of public works, or any other department of the city government.

The 64th clause of section 62, of chapter 24, Rev. Stat. 1874, confers the power “to erect engine houses, and provide fire engines, hose carts, hooks and ladders, and other implements for prevention and extinguishment of fires, and provide for the use and management of the same, by voluntary fire companies or otherwise.” It is claimed this but confers a power that the city is at liberty to exercise, or not, at will ; that it is in no sense compulsory, but its exercise is purely voluntary, and the city having chosen to organize and control the department, it is unlike, in its effects and consequences, the exercise of a power imposed upon the city by legislative requirement,—this is voluntary and that would he compulsory, and this should make a difference in the two cases; that if the legislature had compelled the exercise of this power it would have been exercising a portion of the power of the State, and the city should, in,such a case, not be any more responsible for the action of those employés in carrying out the power, than counties for the acts of sheriffs and other officers required by law; .that the city having voluntarily assumed the exercise of this power, it should be-responsible for its proper and reasonable exercise. These are the grounds urged for a reversal of the judgment of the court below.

On turning to the reported cases of the courts of other States, we find a uniform line of decisions holding that cities are not liable for the negligent acts of the officers or men employed in their fire departments whilst in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior. In his work on Municipal Corporations, Dillon (1st ed. sec. 774,) says : “So, although a municipal corporation has power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires,, it is not liable for the negligence of the firemen appointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire ran over the plaintiff, in drawing a hose reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through-the negligence of a member of the fire department. The exemption from liability is placed upon the grouhd that the service is performed by the corporation in obedience to an act of the legislature,—is one in which the corporation has no particular interest, and from which it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed hy the city corporation, are not the agents and servants of the city, for whose conduct it is liable, but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given, and the maxim respondeat superior has, therefore, no application.” He refers to the cases of Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass. 87, which support the text. In New York the same doctrine is applied in Maximilian v. Mayor, 62 N. Y. 160, and Smith v. Rochester, 76 id. 513. In Connecticut, in the case of Jewett v. New Haven, 38 Conn. 368. In Iowa, in Ogg v. Lansing, 35 Iowa, 495, and Field v. Des Moines, 39 id. 575. In Missouri, by Heller v. Mayor, 53 Mo. 159. In California, in Howard v. San Francisco, 51 Cal. 52. The same doctrine has been announced by the Supreme Court of Ohio.

In favor of the doctrine, it may be that an additional, if not more satisfactory, reason for its adoption and rendering it an exception to the general rule may be found in public policy. If liable for neglect in this case, the city must be held liable for every neglect of that department, and every employé connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employés had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person’s, property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions.- When the excitement is over and calm reason assumes its sway, it may appear to many where other methods could have been adopted to stay destruction, that appear plausible as theories, and their utter fallacy can not be demonstrated by any actual test. To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority.

The judgment of the Appellate Court mustobe affirmed.

Judgment affirmed.