Hawk v. Brownell

• Decision Date: 23 March 1887
• Citation: 120 Ill. 161,11 N.E. 416
• Parties: HAWK v. BROWNELL and others.
• Court: Illinois Supreme Court

120 Ill. 161

11 N.E. 416

HAWK

v.BROWNELL and others.

Supreme Court of Illinois.

March 23, 1887.

Error to appellate court, Third district.

MAGRUDER, J.

This is an action of assumpsit, brought in the circuit court of McLean county by the defendants in error to recover back $1,400 paid by them to plaintiff in error for a one-fifth interest in the ‘Low Patent Gas Process' for the city of Springfield. The judgment in the trial court was in favor of the defendants in error, and has been affirmed by the appellate court. The ground upon which the plaintiffs below sought to recover, was the alleged fraudulent misrepresentation of the defendant as to the price paid by him for the license to make and use gas under said patents, in the city of Springfield. Plaintiffs claimed that defendant agreed to sell them the one-fifth interest in the license in question for just one-fifth of what such license cost him, and that he represented the cost to have been $7,000, whereas the amount actually paid by him was much less than that sum. The proof tends to show that, instead of paying $7,000 in cash for the license for Springfield, he paid $7,000 in stock of the Citizens' Gas Company of Bloomington, which was worth only 75 cents on the dollar.

The instruction which the circuit court gave for the plaintiffs are alleged to be erroneous, because they announce to the jury in substance that the misstatement of the defendant as to what he paid for the license was sufficient to justify the plaintiffs in rescinding the contract, and suing for the $1,400 which they had paid on it. Where the vendor and vendee are dealing at arms'-length with each other, the representations of the former, as to the cost of his property, even though false and made with a view to deceive, will furnish no ground of action. They are looked upon merely as representations in regard to value uttered for the purpose of enhancing the price, and any purchaser who relies upon them is considered as too careless of his own interests to be entitled to relief. Hemmer v. Cooper, 8 Allen, 334;Holbrook v. Connor, 60 Me. 578; Bishop v. Small, 63 Me. 12; Benj. Sales, § 430, note m; Noetling v. Wright, 72 Ill. 390. This rule, however, does not apply where any fiduciary relation exists between the vendor and vendee, or where the property, in regard to the cost of which the vendor makes a false statement, has been bought by him upon the joint account of himself and his vendee. In such cases a misrepresentation as to the price paid will give a right of action to the deceived party. Banta v. Palmer, 47 Ill. 99;Tuck v. Downing, 76 Ill. 71;Plummer v. Rigdon, 78 Ill. 222;Merwin v. Arbuckle, 81 Ill. 501.

In the case at bar, plaintiff in error and defendants in error had entered into an arrangement to organize a gas company, and erect works for the manufacture and sale of gas in Springfield. They had numerous negotiations with each other upon the subject, from early in September, 1883, to late in January, 1884, and during this period made several trips to Springfield, and had consulatations with parties there in relation to the promotion of their joint enterprise. During the progress of these proceedings, plaintiff in error made it known to the defendant in error Pollock that it would be necessary to purchase a license from the owner of the Low patent, and undertook himself to effect such purchase. He says he showed Pollock a letter dated December 1, 1883, from Stevens, the owner of the patent, in which the latter proposed to sell the license for Springfield for $7,000. He closed the purchase of the license from Stevens on December 27th, for $7,000 of the Citizens' Gas Company stock, as above stated. About these facts there is no dispute. The proof tends to show that on January 24, 1884, when plaintiff in error received from defendants in error $1,400 for their one-fifth interest, he concealed from them the fact that he had bought the license for depreciated stock, and gave them to...