Linington v. Strong

• Decision Date: 30 September 1883
• Citation: 107 Ill. 295,1883 WL 10302
• Parties: CHARLES LININGTONv.GEORGE H. STRONG et al.
• Court: Illinois Supreme Court

107 Ill. 295

1883 WL 10302 (Ill.)

CHARLES LININGTON

v.GEORGE H. STRONG et al.

Supreme Court of Illinois.

Filed at Ottawa Mar. 28, 1883.Rehearing denied September Term, 1883.

OPINION TEXT STARTS HERE

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 the contract as soon as he learned of the fraud, 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, 200a, 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 DICKEY 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 case 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 uncontroverted 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 reëxamine 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 the 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 of 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...