Ryan v. Brant

• Citation: 1866 WL 4645,42 Ill. 78
• Parties: EDMUND RYANv.DANIEL R. BRANT.
• Decision Date: 30 April 1866
• Court: Supreme Court of Illinois

42 Ill. 78

1866 WL 4645 (Ill.)

EDMUND RYAN

v.DANIEL R. BRANT.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The opinion of the court contains a statement of the case.

Messrs. MILLER & LEWIS, for the appellant.

Messrs. MONROE & MCKINNON and HOOPER & BRANDT, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court: This was an action of trespass on the case, brought in the Cook Circuit Court to the June Term, 1864, by Daniel R. Brant against Edmund Ryan, and verdict and judgment for the plaintiff. The cause is brought here by appeal, and the following errors assigned:

The Circuit Court erred in deciding that the offer of said plaintiff to surrender said promissory notes, and trust-deed, to the defendant, in case a verdict should be rendered for the plaintiff, was sufficient in law; in refusing to allow the defendant to read in evidence the letters marked A and B, and attached to the deposition of S. R. Clark; in charging the jury as requested by the plaintiff, and giving, in behalf of the plaintiff, instructions numbered three and five; in refusing to instruct as requested by defendant's counsel; in overruling the motion for a new trial.

The instructions numbered three and five, given on behalf of the plaintiff, and excepted to by the defendant, are as follows:

“3. The court instructs the jury, as a matter of law, that the certificate of the secretary of State of the State of Wisconsin, under the great seal of State, is conclusive evidence, as against any and all papers in the case, that the title to the lands described in the deed of trust was, on the 17th day of April last, in the State of Wisconsin, and not in any other person or persons.”

“5. The court instructs the jury, as matter of law, that fraud destroys the contract, and that a fraudulent purchaser acquires no title to goods procured through false representations; and that, if a purchase of goods is effected by means of fraudulent representations on the part of the purchaser, known by the purchaser to be false, and which were relied upon by the seller, and in consequence of which he made the sale, the seller may maintain trover for them against the purchaser, without a previous demand; and if the purchaser in such case, give a negotiable note or notes for the price of the goods so procured, the seller may maintain his action without a previous tender of the note, provided the note or notes have not been negotiated, and are produced at the trial to be surrendered to the defendant. And if the jury believe, from the evidence in this case, that, on or about the 17th day of April last, the defendant, Ryan, made the representations and statements set forth in plaintiff's declaration, and that said Ryan, by means thereof, knowing the same to be false and fraudulent, purchased and procured from the plaintiff, Brant, $1,360 worth of liquors upon the terms and conditions, and upon the security set forth in plaintiff's declaration, and that Brant, in making said sale and delivering said liquors, relied upon and believed the said statements and representations of Ryan to be true, and that Brant would not have made the sale and parted with his goods if he had known or believed the said representations and statements were not true, and as stated to him by Ryan:

And if the jury further believe, from the evidence, that the said representations and statements were not true in point of fact, but, on the contrary thereof, that the same were false and fraudulent, and known to be so by the defendant, and made with intent to procure from Brant the liquors as aforesaid, then the court further instructs the jury, as matter of law, that in such case the defendant acquired no title to the property, and that Brant may maintain this suit against him, without a previous demand or tender of the notes, provided he produces said notes, and securities accompanying the same, on the trial, to be surrendered to the defendant, provided, also, the plaintiff has not, with a knowledge of the fraud (in case the jury shall believe, from the evidence, there was any fraud), done any act in affirmance of the original sale.”

The following are the instructions asked by defendant and refused:

“1 If the jury believe, from the evidence, that the defendant, when he purchased the liquors in question, gave and delivered to the plaintiff therefor, his and Ann McConnell's promissory notes, and a trust-deed upon land owned, or claimed to be owned, by said McConnell, then, before the plaintiff can recover in this action, they must believe, from the evidence, that the plaintiff has restored or surrendered to the defendant and Mrs. McConnell said notes and the trust-deed, with the release thereof.

2. If the jury shall believe, from the evidence, that the defendant purchased from the plaintiff a quantity of liquors, and gave him therefor promissory notes (payable in 60 and 90 days from the date of such purchase), and a trust-deed of land to secure the payment of said notes, then the plaintiff cannot recover in trover for said liquors, without first proving that he returned, or offered to return, said notes and trust-deed, and release of the trust-deed, to defendant.”

The facts are, briefly, that appellee, a liquor merchant in Chicago, was applied to by appellant, on the 17th of April, 1864, to purchase from him a bill of liquors, for the purpose of selling at retail at appellant's store in Elgin, and, to induce appellee to sell to him, he represented that he had a sister-in-law named Ann McConnell, who was wealthy, and seized and possessed of several tracts of land in Wisconsin; that she would sign a note with appellant for the price of the liquors, and execute a trust-deed of these lands to secure the payment of the note. The lands were particularly described in the declaration, and as situated in the county of Waushara, in the State of Wisconsin. Appellant stated to appellee that the lands were worth twelve dollars per acre, and that Ann McConnell had a good and perfect title therefor, deducible from the United States; that appellant had just returned from that county, and had examined the title, and could state of his own knowledge that the title was perfect in Ann McConnell, and that they were worth twelve dollars per acre. Appellee, confiding in these representations, sold appellant a bill of liquors amounting to thirteen hundred and sixty dollars, on a credit of sixty and ninety days, to be secured by two promissory notes of Ann McConnell and appellant and a trust-deed on the lands; the goods to be delivered to appellant upon delivery of the notes and trust-deed. On the 25th of April thereafter, appellee received from appellant the two notes signed by him and Ann McConnell, payable as stipulated, and a third note for sixty dollars signed by these parties, and a trust-deed of the lands executed by Ann McConnell to John J. McKinnon, dated April 19, 1864, to secure the payment of the two first mentioned notes. Appellee thereupon delivered the goods to appellant. It appears that Ann McConnell had no title to the lands, and that appellant knew it at the time he purchased the goods, and that the lands were of little or no value; that she was in limited circumstances, owning no real estate except a homestead on which she resided--all which appellant well knew. Shortly after appellant received the goods, he sold them at forty per cent below their cost. Neither the first note nor the sixty dollar note, which were both due at the commencement of the suit, had been paid. It appears that appellant was worth but little. These are the material facts as proved.

There was a count in trover for the conversion of these goods.

On the trial, appellee offered to surrender the notes, together with a release of the trust-deed executed to secure the notes, to be delivered to the defendant when a verdict should be rendered. Appellant's counsel objected to this offer as insufficient, but the court overruled the objection and decided that the tender and offer to surrender and release the trust-deed was sufficient in...