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REPORTS
OF
CASES AT LAW AND IN CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
NORMAN L. FREEMAN,
REPORTER.
VOLUME 81.
Containing the remaining cases submitted at the
September Term, 1875, and a portion of the cases
submitted at the January Term, 1876.
PRINTED FOR THE REPORTER.
SPRINGFIELD: 1877. '
Entered according- to Act of Congress, in the year 1877, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress, at Washington.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
JOHN M. SCOTT, Chief Justice.
SIDNEY BREESE,
PINKNEY H. WALKER,
BENJAMIN R. SHELDON,
Justices. JOHN SCHOLFIELD,
ALFRED M. CRAIG,
T. LYLE DICKEY*
ATTORNEY GENE HAL,
JAMES K. EDS ALL.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
R. A. D. WILBANKS, Mt. Vernon,
CLERK IN THE CENTRAL GRAND DIVISION,
E. C. HAMBURGHER, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
CAIRO D. TRIMBLE, Ottawa.
* Mr. Justice McAllister having resigned, the Hon. T. Ltle Dickey was elected, on the 21st day of December, 1875, for the remaining portion of the term.
TABLE OF CASES
REPORTED IN THIS VOLUME.
A
PAGE.
Adams Express Co. v. "Wilson
et al 339
Aholtz ads. Daniels 440
Alsop v. Eckles et al 424
Alwood et al. v. Mansfield et al. 314
American Ins. Co. v. Holly 353
Angelo v. Angel o 251
Arbuckle ads. Merwin 501
Arbuckle v. The Illinois Mid- laud Ry. Co. et al 429
Arnold v. Crowder 56
Arnold v. Stock 407
Baker* The Town of Normal. 108
Ball et al. v. Palmer et al 370
Barker ads. The City of Quincy. 300 Beardstown, City of, et al. v.
The city of Virginia et al. . . 541
Beckwith ads. Murray et al 43
Belden et al. v. Woodmansee ... 25
Belgarde ads. Papineau 61
Bell ads. St. Louis, Vaudalia
and Terre Haute R. R. Co. . . 76 Beveridge, Governor, etc. ads.
Hall et al •. 128
Binz v. Weber 288
Block ads. Bongard 186
Board of Supervisors of Clay
County ads. Murray 597
PAGE.
Board of Supervisors of Logan
County* The City of Lincoln. 156 Board of Supervisors of Macon
County * Newell et al 387
Bongard v. Block 186
Boon * Moline Plow Co 293
Brannon et al. v. Sivernail 434
Broadwell v. Paradice 474
Brooks, Admx., etc. ads. Toledo,
Wabash and Western Ry. Co. 245 Brooks ads Toledo, Wabash
and Western Ry. Co 292
Bruce v. Doolittle et al 103
Buckmaster v. Gowen 153
Burke v. Kcester 436
ads. Snelling et al 436
c
Calef * Thomas 478
Carroll et al. ads. Rowand et al. 224 Central City Horse Railway Co., etc. v. Fort Clark Horse Ry.
Co 523
Chapman et al. ads. Partridge,
Wells & Co .... 137
Chicago, Burlington and Quin- cy R. R. Co. v. Damerell et al. 450 Chicago, Burlington and Quin- cy R. R. Co. ads. Dickson. . . 215
Church et al. v. English 442
Clark et al. ads. Jordan 4G5
Clay County, Board of Super- visors of, ads. Murray 597
Cleven ger v. Curry 432
VI
TABLE OF CASES REPORTED.
PAGE.
Co\e\\ouret al.v. Coolbaugh etal. 29
Coleman ads. Walker 390
Connelly v. The People ex rel.
Lewis 379
Couwell v. McCowan et al 285
Couwell v. The Springfield and
Northwestern R. R. Co 232
Cook ads. Goodrich 41
Cook ads. Jewett & Root 260
Coolbaugh et al. ads. Colehour
etal 29
Corbin v. Pearce. 461
Corlies ads. Morgan et al 72
Cowhick, Admr., etc. ads. Work. 317
Crane v. Crane et al 165
Crawford ads. Smith 296
Creed etal. ads. Hoagland 506
v. The People 565
Orowder ads. Arnold 56
Crose v. Rutledge 266
Cunningham et al. ads. Scroggs. 110
Curry ads. Clevenger 432
Cusey et al. v. Hall et al 160
Cushman v. Oliver 444
Outright et al. v. Stanford et al.
Exrs 240
D
Damerell etal. ads. Chicago, Bur- lington and Quincy R. R. Co. 450
Dana v. Short 468
Daniels v. Aholtz 440
Davenport & Cox v. Ryan 218
Davis v. Dresback et al 393
Dayhufffl. Dayhuff, Admr.. etc. 499 Dickson v. Chicago, Burling- ton and Quincy R. R. Co 215
Dills v. Stobie etal 202
Dodd ads. The Governor of the
State of Illinois, for use, etc.. 162 Dodsworth, Exrx. etc. ads.
Langley 86
Dolan, The People, for use of,
v. Herr et al 125
Dooley ads. the Town of Old Town 255
page .
Doolitfle et al. ads. Bruce 103
Dougherty ads. Leachmau 324
Drake ads. Hernandez 34
Dresback et al. ads. Davis. 393
Drew et al. v. Mason et al 498
Dunlop v. The Wilson Sewing Machine Co. 496
E
Eckles et al. ads. Alsop 424
Edgington, Admr. v. Hefner et
al 341
English ads. Church etal 442
Epling ads. Husband 172
Evans et al. ads. Harris 419
Exchange Bank of John C. Short & Co. ads. Sandusk}^ et al 353
F
Fanning et al. v. Russell 398
Fitzwilliam & Sons ads. Hoff- man, for use, etc 521
Fletcher v. The People 116
Foreman et al. ads. Harshbar-
ger 364
Fort Clark Horse Railway Co. ads. Central City Horse Rail-
way Co 523
Freudenstein «. McNeir et al. . . 208 Frisby ads. Hughes & McCart. 188 Frost, Exr, etc v. Howard et al. 602
G
Gill v. Woods, Admr 64
Gilvin ads. Toledo, Wabash and
Western Ry. Co 511
Goldstein v. Lowther 399
Goodrich v. Cook 41
Governor of the State of Illi- nois, for use, etc. d. Dodd. . . . 162
Gowen ads. Buckmastcr 153
Green ads. Illinois Central R. R.Co 19
TABLE OF CASES REPORTED.
vn
PAGE.
Greenbaum et at. v. Greenbaum, Guardian, etc 367
Gumley ads. The County of Piatt 350
Gunning et al. ads. Imperial Fire Insurance Co 236
H
Hake, Mayor, etc. ads. The Peo- ple ex rel. Sullivan 540
Hall et al. v. Beveridg.e, Gover- nor, etc 128
Hall et al. ads. Cusey et al 160
Hansen v. Meyer et al 321
Hardin ads. Massey 330
Harris v. Evans et al 419
v. Simmerman et al 413
Harsh barger v. Foreman et al. . 364 Hefner et al. ads. Edgington,
Admr 341
Henline et al. v. The People... 269
Hernandez v. Drake 34
Herndon & Vanduzen ads. The Indianapolis and St. Louis li.
R. Co 143
Herr et al ads. The People, for
use of Dolan 125
Herrell et al. v. Sizeland etal... 457
Hillyer v. Lewis et al 264
Hinkle et al. ads. Jennings 183
Hoagland v. Creed et al 506
Hoffman, for use, etc. v. Fitz-
william & Sons 521
Howard et al. ads. Frost, Exr.
etc 602
Howard et al. v. Logan 383
Holly ads. The American Ins.
Co 353
Huebsch v. Scheel et al 281
Hughes & McCart v. Frisby. . . 188
Hughes et al. ads. Roberts 130
Husband v. Epling 172
I
Illinois Central R. R. Co. v. Green 19
PAGE.
Illinois Midland Ry. Co. et al. ads. Arbuckle 429
Imperial Fire Insurance Co.i>. Gunning et al 236
Indianapolis, Bloomington and Western Ry. Co. v. Strain et al 504
Indianapolis and St. Louis R. R. Co. v. Herndon & Vandu- zen 143
Ives v. Vanscoyoc, use, etc 120
Jennings v. Hinkle et al 183
Jewett & Root. v. Cook 260
Jones et al. ads. Ulery 403
v. Warner 343
Jordan v. Clark et al 465
Judd ads. Martin 488
K
Kemper v. The Town of Wa-
verly 273
Kenton ads. Scott 96
Keokuk Northern Line Packet
Co. v. The City of Quincy. . . 422 Kerker ads. Raymond etal... - ■ 381
Kibs v. The People 590
Koester v. Burke 436
Lang et al. ads. Steinmetz et al. 603 Langley v. Dodsworth, Exrx. etc , 86
Leachman v. Dougherty 324
Lefever v. Mires et al. 456
Leonard et al. v. The People . . . 308 Leroy v. The City of Springfield 114
Lewis et al. ads. Hillyer 264
Lewis, The People ex rel. ads.
Connelly 379
Lincoln, City of, ads. The B'rd
of Supervisors of Logan Co.. 156
VIII
TABLE OF CASES REPORTED.
PAGE.
Lippincott, Auditor, etc. ads.
The People ex rel. Mayo 193
Litchfield Coal Co. v. Taylor.. . 590
Logan ads. Howard et al 383
». Musick & Brown 415
Logan County, Board of Super- visors of, v. City of Lincoln. 156 Long ads. The McLean County
Coal Co 359
Lowther ads. Goldstein. ; 399
M
Macon County, Board of Super.
visors of, v. Newell et al 387
Mansfield et al. ads. Alwood et
al 314
Martin©. Judd.. 488
Mason et al. ads. Drew et al.. . . 498
Massey v. Hardin 330
Mayo, The People ex rel. v. Lip- pincott, Auditor, etc 193
McCaleb, County Clerk, etc. ads.
The Ottawa Glass Co 556
McCann v. Roach 213
McCowan et al. ads. Conwell.. 285 McLean Co. Coal Co. v. Long. 359
McNab v. Young et al 11
McNeil' et al. ads. Frieudenstien. 208
Merwin v. Arbuckle 501
Meyer et al. ads. Hansen 321
Mires et al. ads. Lefever 456
Mississippi Valley and Western Ry. Co. use, etc. v. The United
States Express Co 534
Mix v. The People ex rel. Shaw,
Collector, etc 118
Moline Plow Co. ads. Boon 293
Mooney v. The People 134
Morgan et al. v. Corlies 72
Morris v. Tillson et al 607
Morrison v. Smith 221
Murray et al. v. Beckwith 43
Murray v. The Board of Super- visors of Clay County 597
Musick & Brown ads. Logan. . 415
N
PAGE.
Newell et al. ads. Board of Su- pervisors of Macon County. . 387 Normal, Town of, ads. Baker. . 108
o
Old Town, The Town of, v.
Dooley 255
Oliver ads. Cushman 444
Ottawa Glass Co. v. McCaleb,
County Clerk, etc 556
P
Palmer et al. ads. Ball et al 370
Palmer, Admr. etc. ads. The
Protection Life Ins. Co 88
Palmer ads. Yazel 82
Papineau v. Belgarde 61
ads. Sandburg 446
Paradice ads. Broadwell 474
Parlin & Orendorff ads. Roberts
etal 230
Partridge, Wells & Co. v. Chap- man et al 137
Pearce ads. Corbin 461
People ads. Creed 565
ads. Fletcher. . 116
ads. Henline et al.. . .... 260
ads. Kibs 599
ads. Leonard et al.. 308
ads. Mooney 134
ads. Pierce 98
ads. Richards 551
ads. Shaw 150
ads. Teerney 411
ads. White et al 333
ex rel. Lewis ads. Con-
nelly 379
ex rel. Mayo v. Lippiu-
cott, Auditor, etc 193
ex rel. Shaw, Collector,
etc. ads. Mix 118
ex rel. Sullivan v. Hake,
Mayor, etc 540
, for use of Dolau v. Herr
et al.. 125
TABLE OF CASES REPORTED.
IX
PAGE.
People, for use, etc. ads. The To- ledo, Wabash and Western Ry.
Co 141
Pierce v. The People 98
Piatt, Count}- of, v. G-umley 350
Preston v. Williams et al 176
Protection Life Ins. Co. v. Palmer, Admr. etc 88
Q
Quincy, City of, v. Barker 300
ads Keokuk Northern
Line Packet Co 422
R
Raub ads. Short et al 509
Raymond et al. v. Kerker 381
Rearick v. Wilcox 77
Rhodes et al. ads. Williams. . . . 571
Richards v. The People 551
Roach ads. McCann 213
Roberts v Hughes et al 130
Roberts et al. v. Parlin & Or en-
dorff 230
Ross v. Sutherland 275
Rowand et al. v. Carroll et al... 224 Rush et al. ads. Schwabacker. . 310
Russell ads. Panning et al 398
Rutledge ads. Crose 266
Ryan ads. Davenport & Cox. . . 218
S
Sandburg v. Papineau 446
Sandusky et al. v. Exchange Bank of John O. Short & Co. 353
Scheel et al. ads. Huebsch 281
School Directors, etc. ads. Wil- son 180
Scott v. Kenton 96
Scroggs v. Cunningham^ al.. . 110
Schwabacker v. Rush et al 310
Shaw, Collector, etc. The Peo- ple ex rel. ads. Mix 118
Shaw v. The People 150
Short ada. Dana 468
PAGTC .
Short et al. v. Raub 509
Shurtlefi' ads. Victor Scale Co. 313 Silvernail ads. Brannon etal... 434 Simmerman et aL ads. Harris. . 413 Sizeland et al. ads. Herrell et al. 457
Smalley v. Smalley 70
Smith v. Crawford 296
Smith ads. Morrison 221
Snelling et al. ads. Burke 436
Springfield, City of, ads. Leroy. 114 Springfield and Northwestern
R. R. Co. ads. Con well 232
Stanford et al. Exrs. ads. Cut- right et al 240
Steinmetz et al. v. Lang et al.. . 603 St. Louis, Vandalia and Terre
' Haute R. R. Co. v. Bell 76
Stobie et al. ads. Dills 202
Stock ads. Arnold 407
Strain et al. ads. Indianapolis, Bloomington and Western
Ry. Co 504
Sutherland ads. Ross 275
Taylor ads. The Litchfield Coal Co 590
Teerney v. The People 411
Thomas ads. Calef 478
Thompson v. Wilhite 356
Tillson et al. ads. Morris 607
Toledo, Wabash and Western
Ry Co. v. Brooks 292
v. Brooks, Admx. etc . . . 245
v. G-ilvin 511
v. The People, etc, for
use, etc 141
Tone v. Wilson et al 529
Trout man ads. Wright etal 374
Trustees of Schools of Town- ship 24, etc. v. Trustees of Schools of Township 25, etc. 470
Turner ads. Wilson et al 402
Tyler et al. ads. Warren 15
TABLE OF CASES REPORTED.
|
u |
p ads. Vest- es.. . The |
AGE. 403 534 49 120 313 541 390 343 15 278 288 333 |
PAGE. Wilcox ads. Rearick 77 |
|
Ulery v. Jones et al United States Express Co Mississippi Valley and T ern Ry. Co. use, etc Updike v. Wright V |
Wilhite ads. Thompson Williams et al. ads. Preston |
356 176 571 339 180 |
|
|
Wilson et al. ads. The Adams Express Co Wilsons. The School Directors, etc |
|||
|
Vanscoyoc, use, etc. ads. Iv Victor Scale Co. v. Sliurtl Virginia, City of, et al. ads. City of Beardstown et al. w Walker v. Coleman Warner ads. Jones |
Wilson et al. ads. Tone Wilson Sewing Machine Co. ads. Dunlap Wilson et al. v. Turner Woodmansee ads. Bel den et al. Woods, Admr. etc. ads. Gill. . . Work v. Cowhick, Admr. etc.. . Wright et al. v. Troutman Wright ads. Updike |
529 496 402 25 64 317 374 49 |
|
|
Waverly, The Town of, Kemper Weber ads. Binz |
ads. |
Yazel v. Palmer |
89 |
|
White etal. v. The People |
Young et al. ads. McNab |
11 |
CASES
IN THE
SUPREME COURT OF ILLINOIS.
NORTHERN GRAND DIVISION
SEPTEMBER TERM, 1875.
John McNab
v.
Hezekiah Young et al.
1. Service — when return of officer sufficient to show. A return by an offi- cer that he served the writ by leaving a true of the same in
the hands of the defendant, naming him, by every fair and reasonable in- tendment constitutes a good service.
2. Trust deed — when purposes of trust are accomplished, title is vested in grantee without action of the trustee. Where the owner of lands conveys them to another in trust, with no interest in the trustee, the owner, when the purposes of the trust are all accomplished, will, without any action on his part, be vested with the legal title, upon which he can maintain ejectment.
3. Deed — executed in blank, good if delivered after grantee's name is in- serted by agent of grantor. An objection to a deed, that at the time it left the grantor's hands, there was no grantee's name in it, is obviated by proof that the officer who took the acknowledgment of the deed, acting as the agent of the grantor, inserted the name of the grantee therein and then de- livered it to the grantee.
4. Same — objection that deed was executed in blank can not be made by stranger to grantor's title. The objection that a deed was executed in blank
12 McNab v. Yottng et at [Sept. T.
Opinion of the Court.
and the name of the grantee inserted after delivery, can not be made by one not claiming through or in right of the grantor.
5. Innocent purchaser — purchasers of legal title without notice of any fraud or invalidity of deeds will he protected. "Where the legal title to land is vested in a party, and there is nothing appearing from which purchasers can know that there has been any fraud in his acquisition of the title, or any invalidity in any deeds in his chain of title, they will be protected in their purchases.
Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
Mr. E. S. Smith, for the appellant.
Mr. Edward S. Bragg, Mr. George Herbert, Mr. J. L. Lombard, Messrs. JSTissen & Barntjm, Mr. D. G. Hamilton, Mr. Sidney Smith, Mr. George A. Meeoh, Messrs. Bonney, Fay & Griggs, and Mr. S. E. Gross, for the appellees.
Mr. Justice Breese delivered the opinion of the Court:
This case has been elaborately prepared and ably argued. There is much in the record which might be omitted, tending to complicate the matters in controversy.
We shall not discuss all the questions presented.
Appellant claims title to the premises in this way: One Horatio N. Heald, of Chicago, had become indebted to appel- lant in a large sum for borrowed money, for which he had executed his notes, and a deed of trust on certain lands and lots, on which there was a school mortgage of some twelve hundred dollars. By some negotiations, about ten thousand dollars of this indebtedness was paid off by Heald, and appel- lant satisfied the school mortgage and paid the taxes on the land. The trust deed was made by Heald and wife to one Henry Moore.
The balance due from Heald not being paid, and Moore be- yond the jurisdiction of our courts, appellant, a citizen of the State of New York, instructed his agent, John R. Parsons, a resident of Chicago, to institute proceedings in the Circuit Court of the United States for this State, for appellant's benefit.
1875.] McNab v. Young et al. 13
Opinion of the Court,
A bill, on the equity side of that court, was exhibited, in the name of appellant, complainant, and against Heald, Moore, the trustee, and some of his judgment creditors, praying that this deed of trust to Henry Moore should be declared a mort- gage security for the benefit of appellant, and that a decree be so entered in favor of appellant, and that it was a security for his benefit, and Moore a mere naked trustee without any in- terest.
A decree pro confesso was taken against Heald, at the July term, 1863, and against all other defendants who had not answered. On reference to the master, the amount found due complainant was twelve thousand dollars, for which a decree passed, and an order of sale of the land.
At this sale, the lands were stricken off to Parsons for fif- teen hundred dollars, and a deed executed and report made to the court, which was confirmed.
Parsons, more than four years afterwards, sold and conveyed these lands to Charles W. Clayton, and after his death, his ex- ecutors, Heyskirk, Young and Mary A. Clayton, sold and con- veyed portions of them to the other defendants in the bill, who set up the facts in their several pleas and answers.
The scope of this bill is, to set aside this deed from Parsons to Clayton as fraudulent and void, and the subsequent deeds also made by Clayton to Lombard and the other defendants, and the deeds from the executors of Clayton, be also declared void; and, further, that Parsons be decreed to make a deed to complainant for the lands.
The first point claiming our attention is one made by appel- lees, that the court had no jurisdiction of the persons in the fore- closure proceedings in the United States Circuit Court. This is based on a blank in the officer's return. The word " copy " is omitted. The return is, " I have, this 10th day of May,
1863, served the writ by leaving a true of the same
in the hands of Horatio -ET. Heald, also leaving at the usual place of abode of Henry Moore a true copy in the hands of Emily Sutton, and explained the contents to her, she being a white person over twenty years of age."
14 McNab v. Young et at. [Sept. T.
Opinion of the Court.
By every fair and reasonable intendment as to Heald, the service was good. It is impossible to doubt, although the word " copy " is omitted from the whole return, a copy of the writ was left with Heald.
As to Moore, the return is not in conformity with the stat- ute, but he was not a necessary party to the proceeding, being a mere naked trustee, with no real interest in the subject of controversy. Had the purposes of the trust been accomplished Heald would, without action on his part, have been vested with the legal title, on which he could have maintained eject- ment. Hardin v. Osborne, 60 111. 93.
Disposing of these points, we place our decision on the fol- lowing grounds:
The title acquired by Parsons at the judicial sale was the legal title. It nowhere appears, from any record, paper, or writing of any kind, to the outside world, that the legal title was not in him; and there was nothing we can discover, appa- rent anywhere, to put purchasers from Parsons on inquiry. He held the title unchallenged for more than four years, when he sold and conveyed to Clayton.
As between Parsons and Clayton, it may be said Clayton knew of the claim of appellant. This may be admitted, and for this interest or claim, whatever it may have been, Clay- ton became the purchaser from appellant, by a contract not forfeited at the time of his death, and on which large pay- ments had been made by him to appellant. The whole case shows these proceedings in the United States Court were, in part, for the benefit of Heald, as well as that of appellant, and Clayton purchased Heald's interest, paying him five thousand dollars therefor. Parsons, holding the legal title, sold and conveyed it to Clayton. Objections are taken to this deed, executed by Clayton, it not having, when it left his hands, the name of a grantee. This is explained by Parsons' testimony, and a complete delivery was made of the deed after the ac- knowledgment was taken by Hoyne, and the blank filled with Clayton's name by Hoyne, who put it in acting as the agent of the grantor. But the objection, if it be one, can not be
1875.] Warren v. Tyler et al. 15
Syllabus.
made by one not claiming through Parsons, or in his right. Appellant does not so claim.
For aught appearing, the purchase by Clayton was in good faith, and those made of him by his co-defendants were also in good faith, and with no notice of any infirmity in the title offered to be sold. How could purchasers know, from the record, there was fraud in the transaction or invalidity in deeds? They all appeared fair on the record, and there was nothing dehors the record to admonish those desirous of purchasing of any danger or doubt.
Appellant knew, for four years, the legal title had passed to Parsons, but made no effort to divest him. He must have known of Parsons' sale to Clayton, and of Clayton's various sales, as he was frequently in Chicago, but he made no objec- tion, he did not interfere, until the property had passed into various hands and become very valuable.
That appellant has equities in this matter in controversy we do not question, and if jjroperly presented, doubtless they will be decreed to him; but they do not reach to the extent he claims in this bill.
On this point, alone, we affirm the decree dismissing the
bill.
Dewee affirmed.
Andrew Warren v. James E. Tyler et al.
1. Fraud— effect of rescission of contract for. Where a creditor, after set- tlement, is induced by the fraudulent representations of his debtor to take a conveyance of lands in payment, and after discovering the fraud rescinds the contract, by tendering back a conveyance, and bringing suit on his debt, he will have the right to recover the entire debt, without any deduc- tion for the actual value of the lands.
2. Same — time in which to rescind contract for fraud. A suit brought in rescission of a contract for fraud, eighteen months after its consummation,
16 "Warren v. Tyler et at. [Sept. T.
Opinion of the Court.
where the party had not discovered the fraud until some time after, and re- quired time to procure evidence of the fact, is not brought too late.
3. Interest — at what rate recoverable. Where, prior to a settlement, a firm was in the habit of charging a customer seven per cent interest, in their dealings with him, which he always paid: Held, in the absence of proof to the contrary, that an agreement to pay that rate might be inferred from such previous dealings.
4. Same— -from what time allowed on rescission of contract for fraud. When a party rescinds a contract whereby he is induced to accept unim- proved lands in settlement of a debt, through the fraudulent representations of his debtor, made with a knowledge of their falsity, and upon which the creditor relied, he will be entitled to the interest from the time of the pre- vious settlement, the same as though the contract of purchase had never been made, and will not be restricted to the time when he tendered a recon- veyance, he having received no rents and profits to be deducted.
Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
On November 18, 1871, appellant was found to be indebted to appellees, on settlement, in the sum of $7,831.28, which was settled in full on December 11, 1871, by appellees accept- ing from Marcus Warren, appellant's brother, certain lands in the State of Wisconsin. The lands were not worth much more than one-half of the debt. Appellees were induced to make the settlement upon the representations of appellant that he had lost everything, and had nothing with which to pay them. After discovering that these representations were not true, they tendered a reconveyance of the lands, and brought this suit upon the original debt.
Messrs. Lawrence, Campbell & Lawrence, for the appel- lant.
Mr. Frederick Ulmann, and Mr. E. W. Evans, for the appellees.
Mr. Justice Walker delivered the opinion of the Court:
The principal question presented in this case is one of fact, exceptions having been taken on the rulings of the court to only two or three legal propositions. But it is urged that the
1875.] "Warren v. Tyler et al. 17
Opinion of the Court.
court below should have granted a new trial, because the find- ing of the jury was manifestly against the weight of evidence. When examined, it is found that if all the evidence were taken alone, on either side, it would be amply sufficient to sus- tain a verdict for that side. Withdraw all of appellant's evi- dence, and we apprehend no one would question the correctness of the finding. Or, on the other hand, if all of appellees' evidence was stricken out, then the defense would be established beyond question.
But the evidence is highly conflicting, and portions of it are irreconcilable, and it was for the jury, under proper instruc- tions, to find and determine what was proved under the issues of fact in the case. Such instructions were given, and the jury found in favor of the plaintiffs, and we are not prepared to say that their finding is decidedly and clearly against the preponderance of the evidence. In the conflict it was for the jury to find the facts, and unless the evidence failed to warrant the verdict, the court could not rightfully set it aside. We are therefore of opinion that the court below did not err in re- fusing to grant a new trial on that ground.
It is urged that the finding of the jury is excessive; that according to the evidence of Sheldon, the Wisconsin lands were worth, at the lowest estimate, from $3500 to $5000, and that appellees had nO right to recover more than the difference between that sum and the amount of the debt. The answer to this is, that if the contract to take the lands on the debt was procured by false representations, known to have been such, by appellant, and they were relied upon by appellees, and they were thereby induced to enter into the agreement, it was voidable, and appellees, on discovering the fraud, had the right to repudiate it, and sue for and recover the debt. The jury, on the evidence, and under proper instructions, have found that appellees were so induced to enter into the contract, and we are not disposed to disturb the finding. Had the con- tract been fairly entered into by the parties, and the only fraud had consisted in fraudulent representations by appellant, when the price was fixed on the lands by Sheldon, then a different 2— 81st III.
18 "Warren v. Tyler et al. [Sept. T.
Opinion of the Court.
question would have arisen, which it is unimportant now to determine.
It is said that the delay of eighteen months after the fraud was discovered, was too great, before bringing suit, to be per- mitted to recover. And the case of Cox v. Montgomery, 36 111. 396, is referred to in support of the proposition. That case, in limiting the period within which the party defrauded must bring suit, is perhaps one of the most extreme cases. But there, the party had full knowledge of the fraud and all of the facts constituting it, for the period of eighteen months before suit brought. Here, on the other hand, appellees only had their suspicions aroused, and commenced their investigations that length of time before this action was commenced. Appel- lant's property was scattered, and the record of titles in Cook county had been destroyed by fire, and we may reasonably sup- pose that some considerable time expired before they could learn all the facts necessary to establish their case; and to hold appellees precluded from rescinding the sale, would be to materially shorten the period laid down in Cost? 8 case, which we are not inclined to do.
It is next urged that the verdict was excessive, inasmuch as it allowed appellees seven per cent interest on the account, from the time it was stated until the finding of the verdict. On the statement of an account and the ascertainment of the balance due, the present statute only allows six per cent inter- est. But the statute then in force authorized the parties, by written or verbal agreement, to stipulate for any rate of inter- est not exceeding ten per cent per annum. Public Laws 1857, sec. 2, p. 45. Tyler, in his testimony, states that his firm had been charging appellant seven per cent in their dealings with him, and he had been paying it. This, in the absence of proof to the contrary, was evidence from which an agreement to pay that rate might be inferred; but had it been rebutted by evi- dence that no such agreement had, in fact, been made, then the presumption would have been rebutted, as we apprehend that a rate higher than that fixed by the statute could only be collected when there was an express stipulation or agreement
1875.] Illinois Central E. R Co. v. Green. 19
Syllabus.
therefor. There was no evidence in this case rebutting the presumption, and there was no error in its allowance.
It is also urged that interest could only be allowed from the time of the rescission of the contract; and the case of Hard- ing v. Zarkin, 41 111. 414, is cited in support of the proposi- tion. That was an action of covenant for the breach of warranty of title; that grew out of a valid and binding con- tract. But here, the contract was fraudulent and voidable, and the rescission of the contract and tender of a reconveyance of the lands placed the parties in their former position, as though the conveyance had never been made. Hence, there is no pre- sumption of rents and profits received by appellees, and the proof shows that the lands were vacant and unoccupied. Had the evidence shown that appellees had received rents and profits, whatever amount they had received could have been set oft* or recouped against the recovery. But the record is barren of any such evidence, and interest was properly allowed from the date of the settlement and the striking of the balance.
After a careful examination of the entire record we perceive no error for which the judgment should be reversed, although we should have been quite as well, if not better, satisfied, had the jury found the other way; and the judgment of the court below must be affirmed.
Judgment affirmed.
The Illinois Central Railroad Company
v. William E. Green
1. Negligence — contributory and comparative. It is a requisite to the liability of a railway company as a passenger carrier, that the passenger should not have been guilty of any want of ordinary care and prudence, which directly contributed to the injury.
2. Where a passenger, while asleep, is carried beyond his station, and when the train arrives at a bridge where it stops to take water he gets up,
20 Illinois Central E. E. Co. v. Green. [Sept. T.
Opinion of the-Cour
and, -without any encouragement from any one connected with the company, goes out of the car in a dark night, and, finding no brakeman, put out his foot to reach the platform, if he could, and there being no platform there, the train gave him a jerk and pulled both feet off the car, and left him hang- ing by one hand, and his weight pulled him loose, and he fell through the bridge, some thirty feet to the ground, and was injured, it was 7ield, that he was guilty of such negligence as to preclude a recovery for the injury.
3. Same — carrying passenger beyond station. In such a case, even if the company was guilty of negligence in carrying the passenger beyond his station, it would not justify him in needlessly exposing himself to clanger, and the injury received had no proper connection with the act of the com- pany, and the company can not be held responsible for any such remote and unnatural consequence thereof, as his attempting to get off at such a place.
4. Same — in not notifying passenger not to get off on a bridge. Where a railway train stops, in the night, upon a bridge over a stream, to take water, it not being a stopping place for passengers to get on and off, the railway company is not required, by law, to notify passengers not to attempt to get off the cars at such place, and a failure to do so is not negligence.
5. Same — company not liable for acts of strangers. Any encouragement given to a passenger by other passengers to attempt to get off a train at a place of danger, and not a stopping place except for water, resulting in injury to him, can not be imputed to the railway company as in any way its act, and it is not responsible for the same.
'Appeal from the Circuit Court of Cook county; the Hon. "W. ~W. Farwell, Judge, presiding.
Mr. Jno. N. Jewett, and Mr. Chas. T. Adams, for the ap- pellant. »
Messrs. Bonney, Fay & Griggs, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action on the case, for personal injury to appel- lee whilst a passenger on the cars of appellant.
The appellee took the cars of appellant at Odin, in this State, going south, at about nine o'clock in the evening of May 25, 1870. He was going to a place about seven miles east of Mt. Vernon, and took a ticket to Ashley, which is some five miles north of Little Muddy bridge. The accident occurred in get- ting off the train at this bridge. There was no station there,
1875.] Illinois Central R. R. Co. v. Green. 21
Opinion of the Court.
but there was a water tank, and it was a regular stopping place for supplying water to the engines, and for no other purpose.
Appellee's account of the affair is substantially as follows: That the conductor on the train took his ticket between Odin and Centralia; that he objected to the conductor taking his ticket, because appellee was a stranger on the road, and wanted to know when he arrived at Ashley; that the .conductor said to him, "give yourself no uneasiness, we always see that our passengers are put off at their regular stations;" that they stopped at Centralia, and remained there awhile; that Centra- lia is fourteen miles from Ashley; that he went to sleep, and remained so until he heard the locomotive whistle and the station called out of Irvington, which was seven and one- half miles from Ashley; that it was four miles from Irvington to Richview; that Irvington and Richview were the only sta- tions between Centralia and Ashlev: that after leaving Irvin^- ton he went to sleep again ; that he heard the whistle, and no station announced, and then when the cars traveled along again he supposed they were going down grade, which he took to be a grade from Ashley to Rich view, and he began to think he was reaching his station, and he inquired if they were com- ing to Ashley, and the response was, by passengers on the cars, that they had passed Ashley and were coming to the next sta- tion; that when the cars became about still he stood up at his seat and looked back, and asked the passengers if they saw any- thing of the conductor on the car, and they remarked they did not; that he felt that he had been neglected, and went to the door, and, findino; it unlocked, turned around and said, "
> &
gen-
tlemen, this is right, I suppose," and being