Strong v. Linington

• Decision Date: 31 March 1881
• Citation: Strong v. Linington, 8 Ill.App. 436, 8 Bradw. 436 (Ill. App. 1881)
• Parties: GEORGE H. STRONG ET AL.v.CHARLES M. LININGTON.
• Court: Appellate Court of Illinois

8 Ill.App. 436

8 Bradw. 436

GEORGE H. STRONG ET AL.

v.CHARLES M. LININGTON.

Appellate Court of Illinois, First District.

March Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 29, 1881.

This action was assumpsit by appellants, Strong and Young, against appellee, Linington. The declaration contained three special counts upon articles of agreement, under the hands and seals of the respective parties bearing date April 1, 1876, wherein the plaintiffs were parties of the first part, and the defendant the party of the second part; in and by which the parties of the first part sold and assigned to the party of the second part the sole and exclusive right to manufacture and sell, under certain letters patent from the United States to said Strong, throughout the United States, &c., and the Canadas, for the period of five years from date, a certain improvement on pinchers; in consideration of which the party of the second part was to pay parties of the first part, a royalty of $1.44 for each gross of such pinchers manufactured and sold by party of second part, during that time; payments to be made quarterly, and the instrument declared on contained this stipulation: “And said party of the second part hereby agrees to keep an accurate book of accounts of the number of said pinchers manufactured and sold by him, and render a true statement therefrom to the first party at the end of each quarter. Such statement of account to be verified by affidavit by the party of the second part, and also agrees to pay the royalty on at least twenty-five hundred dozen of said pinchers each year, and in default thereof this contract may, at the option of the said party of the first part, be declared null and void.”

It further provided that one-half of said royalty on the twenty-five hundred dozen should be paid to each of the parties of the first part, and all in excess of that to be sixty per cent. to Strong and forty per cent. to Young. Setting out breach.

The defendant pleaded non-assumpsit duly verified.

On the trial, the plaintiffs produced the instrument declared on, proved its execution by showing that the respective parties signed it, the same having been executed in three parts, one of which was left with each of the parties. The defendant then offered to prove, under the general issue verified, that the execution of it on his part was obtained by fraud, by the plaintiffs subsituting a contract different from that he supposed he was signing. To this plaintiffs objected, on the ground that such proof was inadmissible under the plea of general issue, and the facts should have been specially pleaded. The court overruled the objection, and plaintiffs excepted. The defendant thereupon gave evidence tending to show what the original agreement between the parties, in respect to the subject-matter actually was, and that he had caused his attorney to make a draft of the same in writing, which was done and such draft produced in evidence, from which it appears that the royalty was to be paid to Strong & Young jointly, and as an entirety; that the words, “such statement of account to be verified,” etc., contained in that declared on, were not in it. Neither were the words “and also agrees to pay the royalty on at least twenty-five hundred dozen of said pinchers each year.” But instead of that, the draft reads thus: “And shall also make and sell at least twenty five hundred dozen of said pinchers each year during the time aforesaid, and in default thereof this contract may, at the option of said party of the first part, be declared null and void.”

The defendant gave testimony tending to show that such draft expressed the real contract, and that it was taken by one of the plaintiffs to be copied before execution; that defendant gave plaintiffs permission to make a change from the draft, to the effect that the royalty to be paid should be apportioned between the plaintiffs. That this was the only alteration from the draft that defendant authorized; that the draft being taken for that purpose, the plaintiffs afterwards came to defendant's office with what purported to be three copies of said draft for execution, and represented that they were the same as the draft except as to the provision for plaintiffs to each have a certain portion of the royalty to be paid; that defendant, although he glanced the copies over sufficient to see their general nature, did not read them and did not know of the other alterations, and signed without knowing they had been made. There was contradictory testimony given on the part of the plaintiffs as to the representations, and the fact that defendant did not read the papers before he signed them.

The court, at the request of plaintiffs' counsel, gave to the jury the following instructions:

2. The jury are instructed that if they find from the evidence that the plaintiffs are entitled to recover, then their verdict should be for the plaintiffs in the sum of $650.

3. The jury are instructed that if they find from the evidence that the plaintiffs used no means to deceive or mislead the defendant as to the nature of the contract he was signing, then the plaintiffs are entitled to recover.

4. The jury are instructed that if they find from the evidence that at the time of the signing of the contract in evidence the defendant was a man capable of taking care of his own interests, then no defense has been shown in this case, unless the jury also find from the evidence that at the time the plaintiffs practiced such deceit on the defendant as ordinary care and diligence on his part would not have protected him against.

5. The jury are instructed that the verdict should be for the plaintiffs, unless they find, from the evidence, that the defendant was induced through fraud and deceit of the plaintiffs to enter into a contract different from what he thought he was executing.

Instruction asked by plaintiffs' counsel, which the court refused to give to the jury:

“1. The jury are instructed that the verdict should be for the plaintiffs.”

Exception taken by the plaintiffs' counsel.

Instructions given to the jury on behalf of the defendant:

“1. The jury are instructed on behalf of the defendant, that fraud vitiates all contracts as between the parties. And if the jury believe from the evidence that plaintiffs undertook to copy out a draft of a contract that defendant had prepared as evidence of an agreement between them, and put into such copies a material change not specifically agreed to by the defendant, and presented such copies for the defendant's signature without calling his attention to such change, and defendant signed without knowing of such change, then such contract so signed was not binding on the defendant. And the court further instructs you that the provision in the contract in evidence, requiring the defendant to verify his quarterly statements of account by affidavit, is a material change of the original draft; and if this change was not known to the defendant at the time he signed, and was not afterward ratified or approved by him, and was fraudulently inserted by the plaintiffs, then the contract is not binding upon the defendant.

2. If the jury find from the evidence that the plaintiffs, by fraudulent misrepresentations as to material matters, obtained the signature of defendant to the contract offered in evidence, then the ury must find for the defendant.”

To the giving of which instructions for the defendant the plaintiffs' counsel duly excepted. The jury found for defendant, and the court, overruling plaintiffs' motion for new trial, gave judgment, and plaintiffs appealed to this court.

Mr. E. A. SHERBURNE, for appellee; upon petition for rehearing, that the instructions must be considered as a whole, and if they then correctly state the law, they will be held good, cited Lawrence v. Hagerman, 56 Ill. 68; Van Buskirk v. Day, 32 Ill. 260; Walker v. Collier, 37 Ill. 362; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Aurora v. Gillett, 56 Ill. 132.

Whether the defendant was guilty of such negligence as should preclude him from setting up his defense, was a question for the jury: Munson v. Nichols, 62 Ill. 111.

Defendant was not guilty of negligence in this case: Botsford v. McLean, 45 Barb. 487; Taylor v. Atchinson, 54 Ill. 196; Elliott v. Levings, 54 Ill. 213; Lloyd v. Higbee, 25 Ill. 603; Mead v. Bunn, 32 N. Y. 275; Eaton v. Winne, 20 Mich. 156.

No man can complain that another has relied too implicitly upon the truth of what he himself stated: Kerr on Fraud, 80; Lloyd v. Higbee, 25 Ill. 603; 2 Addison on Torts, 1,004; Pasley v. Freeman, 3 T. R. 55; Eames v. Morgan, 37 Ill. 260; Weatherford v. Fishback, 3 Scam. 171; Kirkland v. Lott, 2 Scam. 13; Woods v. Hynes, 1 Scam. 103; School Directors v. Boomhour, 83 Ill. 17; Easter v. Minard, 26 Ill. 494; Allen v. Hart, 72 Ill. 104; Kohl v. Lindley, 39 Ill. 195; Gibbs v. Linaberry, 22 Mich, 479; Champion v. Ulmer, 70 Ill. 322; Hubbard v. Rankin, 71 Ill. 129.

Messrs. SMITH & BURGETT, for appellants, on petition for rehearing, as to fraud, contended that if the means of knowledge are alike accessible to both, the parties must be presumed to have relied upon their own knowledge, and must abide the consequences, and cited Richter v. Roller, 31 Ark. 170, 173; Fulton v. Hood, 34 Penn. St. 365, 371; Capehart v. Mhoon, 5 Jones' Eq. 178, 182-3; Yeates v. Pryor, 11 Ark. 58; Hills v. Bush, 19 Ark. 52; Lytle v. Bird, 3 Jones, 222, 225; Walsh v. Hall, 66 N. C. 233, 239; Etheridge v. Vernon, 70 N. C. 713, 724; Credle v. Swindell, 63 N. C. 305; Tallman v. Green, 3 Sandf. (N. Y.) 437, 442; White v. Seaver, 25 Barb. 235, 242; Vanderwalker v. Osmer, 65 Barb. 556; Long v. Warren, 69 N. Y. 426, 431-2, where N. Y. cases are reviewed; Brown v. Castles, 11 Cush. 348, 350; Cowper v. Levering, 106 Mass. 77, 79; Brown v. Leach, 107 Mass. 364, 368; Bell v. Ryerson, 11 Iowa, 233; Bell. v....