Allin v. Millison

• Decision Date: 31 January 1874
• Parties: THOMAS H. ALLIN et al.v.JAMES B. MILLISON.
• Court: Illinois Supreme Court

72 Ill. 201

1874 WL 8788 (Ill.)

THOMAS H. ALLIN et al.

v.JAMES B. MILLISON.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of DeWitt county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. S. G. MALONE, for the plaintiffs in error.

Mr. L. WELDON, Mr. A. B. BUNN, and Mr. JOHN W. SMITH, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 27th day of July, 1867, Allin & Poston sold to Millison an undivided one-third interest in the exclusive right to manufacture, use and sell, within a certain territory, a certain match-safe, denominated the “Magic Match-Safe and Self-Lighter,” for which letters patent had been recently issued, for the sum of $3333, for which Millison gave his three promissory notes, each of equal amount, payable in six, nine and twelve months, and secured by a mortgage on 160 acres of land. This was an action on the case, brought by Millison against Allin & Poston and Leforgee, to recover for fraud and deceit in the sale. The plaintiff recovered a verdict and judgment for $4447.77, the amount of the notes with interest. The defendants prosecute this writ of error.

It is insisted that the verdict is not supported by the evidence.

The fraud and deceit relied on consist in certain fraudulent representations alleged to have been made by Leforgee, as the agent of Allin & Poston. The representations are testified to by Millison, and denied by Leforgee. It is claimed this made no preponderance of testimony for the plaintiff; but it was for the jury to weigh this testimony and judge of the credibility of the witnesses, and we think there were circumstances disclosed in the testimony which would justify the jury in giving credence to the statements of Millison, rather than to those of Leforgee. The latter admits that he represented to Millison that “the thing was very valuable.” Now, the testimony shows that, in repeated instances, within the knowledge of Leforgee, persons to whom territory had been sold, after having gone on and canvassed their territory, and used endeavors to make sales, returned without having been able to effect sales, and made their complaints of the worthlessness of the invention, and that they were promised to have their money paid back, if they would keep still upon the subject. The jury might have concluded, from the evidence, that it was not the honest opinion of the witness that the invention was valuable, as he had represented, and that, in so representing, he knowingly falsified, and thereby cast discredit upon his whole testimony.

As between Leforgee and Millison, on the question whether Leforgee made the representations, the finding of the jury was upon a conflict of testimony, and we see no sufficient ground for disturbing it because it was in favor of Millison.

The alleged representations were not mere matters of opinion, or in commendation, but they were statements of facts, which were material, and, if true, would tend to give the match-safe a value such as would operate on the mind of Millison in making the contract. Millison made inquiry of Leforgee, in regard to three certain persons who he had heard had bought territory, as to how they were doing.

Leforgee represented to him that they were selling their territory, doing well with it, and had made thousands of dollars, and that he had just received a letter from one of them, so stating, in regard to himself.

It was in evidence that no such letter was written; that all these persons, after actual trial in their respective territories, were unable to effect any sales of any account of the match safes, or of territory; that they could make nothing out of the...