Eames v. Morgan

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Eames v. Morgan, 37 Ill. 260, 1865 WL 2818 (Ill. 1865)
• Decision Date: 30 April 1865
• Parties: JAMES H. EAMES and WILLIAM FORDHAMv.LANSING MORGAN, GILBERT MORGAN and EDWARD L. FURNISS.

37 Ill. 260

1865 WL 2818 (Ill.)

JAMES H. EAMES and WILLIAM FORDHAM

v.LANSING MORGAN, GILBERT MORGAN and EDWARD L. FURNISS.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the Circuit Court of Cook county; Hon. E. S. WILLIAMS, J.

Action on the case for deceit, brought by defendants in error against plaintiffs in error.

The bill of exceptions showed that plaintiff had amended his declaration, but failed to show what the amendments were, that defendant had thereupon applied for a continuance, which had been denied, that defendant having filed no new plea to the amended declaration, objected to going to trial on the ground that the issues were not made up, which objection was overruled; that on the trial a verdict was had for the plaintiffs for $2,484.00. Motion for new trial overruled and judgment for the plaintiff on the verdict.

The contest turns largely on the instructions of the court which were as follows:

1. It is the duty of every party, in making a contract, to be honest and truthful in his statements and representations, and although a party to a contract is bound to exercise reasonable care and caution to prevent being defrauded; yet if the party committing the fraud make use of such false statements, representations and acts, with respect to a material inducement to the contract, as are calculated to deceive and mislead a person acting with common prudence and without indiscretion, and he is thereby induced to enter into a contract, or to part with his property, then such party cannot be heard to complain that the person so deceived and misled did not make such inquiries as might have resulted in a discovery of the falsity of the representations.

2. That a party alleging fraud must prove it to the satisfaction of the jury, but in a civil action like the one at bar the party alleging fraud is not bound to prove its existence beyond a reasonable doubt. It will be sufficient if the fact is established in the minds of the jury by the weight and preponderance of the evidence only. It is not necessary that the proof should be of such a character as would warrant the conviction of the defendants in a criminal prosecution for false and fraudulent representations.

3. This action is not brought upon the contract given in evidence, and it is not necessary to the recovery of the plaintiffs that they should show performance of the contract by them. The action is based upon fraud and deceit, and loss to the plaintiffs resulting therefrom; and if the jury believe, from the evidence, that the defendants were guilty of the fraud and deceit alleged in the declaration, and that the plaintiffs delivered wood of some value to the defendant, Eames, and sustained damages in consequence thereof, then they will find the defendants guilty.

4. This action is not founded on or brought upon the contract offered in evidence, and it is not necessary to the recovery of the plaintiffs that both of the defendants are shown to have been guilty. The jury may find either of them guilty, if they believe, from the evidence, that the fraud and deceit was practiced upon the plaintiffs by either, as alleged in the declaration, and that the plaintiffs sustained damages in consequence of such fraud and deceit.

5. If the jury believe, from the evidence, that the defendants falsely and deceitfully represented to the plaintiff that no transfer of the said lot had taken place since the date of the abstract, as alleged in the first count of the declaration, with the intent and purpose as therein alleged, and that the plaintiffs, relying upon such representations, were induced to, and did, deliver wood of value to the defendant, Eames, then they will find the defendants guilty.

6. If the jury believe, from the evidence, that the defendants made the representations and statements contained in declaration, and that the same were made with the intent as therein alleged, and that the plaintiffs, relying upon the said representations and statements, were thereby induced to deliver wood to the defendant, Eames, and that the representations and statements were false or fraudulent, as therein alleged, then they will find the defendants guilty.

7. If the jury find the defendants guilty, and believe, from the evidence, that defendant, Eames, accepted the wood lying at the depot, then they will be liable for the value thereof at Morgan's Station, if that was the place at which the same was to be delivered; and in order to ascertain whether there was an acceptance thereof, are entitled to take into consideration all the acts and statements of the defendant, Eames, in evidence, if any are in evidence, respecting the said wood, made to the freight agent and others.

8. If the jury find for the plaintiffs, and that the defendants are guilty of the fraud and deceit charged in the declaration, then, in estimating the damages, they may give the value of the wood, delivered by the plaintiffs to the defendant, Eames, at the place where the same was to be delivered, according to the terms of the contract, at the time the same was delivered, together with interest thereon to this date, together with such sum as will indemnify the plaintiffs for all damages directly sustained by them, by reason of the misconduct of the defendant, including such exemplary damages as the jury may think the circumstances warrant by way of punishment of the defendants for the fraud and deceit, and of example to the community.

The defendant excepted to giving these instructions, and, on his own behalf, he asked of the court, the following instructions, in addition to those set out in the opinion of the court, and which the Circuit Court gave to the jury:

1. Every false affirmation does not amount to a fraud, if, by an ordinary degree of precaution, the plaintiff could have ascertained the falsity of the representations complained of, then the plaintiffs are not entitled to a verdict. To entitle them to a verdict, it should appear that the representations or means made use of, were calculated to deceive a person acting with ordinary prudence, and on determining the question, the jury should consider the circumstances under which they were made, and whether, under the circumstances, the representations were such as a person of common prudence could or should have relied upon, or as would be likely to mislead such a person.

2. The plaintiffs are not entitled to recover, unless the jury believe, from the evidence, that the defendants made the representations alleged in the declaration, and such representations were false, and were made with an intent to defraud plaintiffs, and that the plaintiffs were induced, by such representations, to make the contract.

3. If the plaintiffs shipped wood to defendant, Eames, that was more than one-third green, or that was not of the kind and quality mentioned in the contract between them and Eames, Eames was not bound to receive it, and if he did not receive such wood, the plaintiffs cannot recover for it.

5. That the bill in chancery read in evidence by the plaintiff, is no evidence of any fact stated in it, and can only be used to show the fact of a suit being instituted, but the plaintiffs having read the answers of defendant filed in the same cause as evidence, it is evidence tending to prove all the facts stated in it.

The instructions asked by defendant numbered four, six, seven, eight, nine, ten, eleven, twelve and thirteen, were refused by the Circuit Court. They are copied into the opinion of this court, and it is, therefore, unnecessary again to state them.

Mr. WM. T. BURGESS, for plaintiffs in error, cited: Sims v. Klein, Breese, 234; Dunbar v. Bonesteel, 2 Scam., 34; Pasley v. Freeman, 37, R., 51; Stone v. Bennett, 5 Hill, (N. Y.) 303; Kirkland v. Lott, 2 Scam., 12.

GOOKINS, THOMAS & ROBERTS, for defendant in error, cited: Weatherford v. Fishbach, 3 Scam., 170; McAllister v. Ball, 28 Ills., 210; Wright et al. v. Lessee of Hollingsworth, 1 Peters, 185; Culver v. Avery, 7 Wend., 380; Mard v. Wiman, 17 ib., 193; Whitney v. Allaire, 1 Comst., 305; Cravens v. Gant, 4 Monroe, 126; Browning v. Bancroft, 8 Met., 278; Upton v. Vail, 6 Johns., 181; Weatherford v. Fishbach, 3 Scam., 170.

That an action on the case will lie for the assertion of a falsehood with a fraudulent intent as to a present or existing fact, where a direct, positive and material injury results from such assertion, citing Benton v. Pratt, 2 Wend., 386.

That the action will lie, whether the false representation be made respecting the title to real estate, the boundaries thereof, or incumbrances thereon, during the treaty, even though the negotiations be consummated by a written contract or deed with covenants against incumbrances, citing Culves v. Avery, 7 Wend., 381; Ward v. Wiman, 17 Ib., 198.

That it was immaterial, that the party making the fraudulent representations had no interest in the subject matter and expected to derive no advantage from it, citing Weatherford v. Fishbach, 3 Scam., 175; Olmstead v. Hotaling, 1 Hill, 317.

That the defendant could not allege that the plaintiff was guilty of folly in relying upon the representations, when, by using proper care, he could have ascertained their falsity, if the defendant uses any means or artifices to induce the plaintiff to forego inquiry, citing Weatherford v. Fishbach, supra, Kirkland v. Lott, 2 Ib., 13.

That it matters not whether the contract of the parties be executed or executory, citing Whitney v. Allaire, 1 Comst., 303.

And that the action will lie, although the fraudulent representations are not contained in the conveyance, nor in the written contract entered into between the parties, citing Dabek v. Stevens, 3 Barn. & Cres., 623. Mr. JUSTICE BREESE delivered the opinion of the court:

This is an action on the case for deceit on the part of plaintiffs in error, in selling a lot of land in Chicago, for a quantity of wood, they falsely representing the lot to be clear of incumbrance. A bond...