« ForrigeFortsett »
damages on the ground said sale had been brought about by the fraud of Harding practiced upon Cantwell.
The suit was originally in assumpsit, but the special counts were in tort for fraud and deceit, and the case was tried (as is conceded by both parties) for fraud and deceit. The evidence was conflicting. The court gave to the jury the following instruction :
“If the jury believe, from the evidence in this case, that the plaintiff has made out his case as laid in his declaration, or any count thereof, they must find for the plaintiff."
The first special count averred the sale of the stock for $5000; that the defendant represented that the said corporation was doing a large business; that it was making a profit of $20,000 a year, and that if the plaintiff purchased said stock he could draw a salary of $1800 per year as one of the salaried officers of said corporation, and that said representations were false. It did not aver, however, that the defendant knew the said representations were false,-in other words, that count of the declaration failed to aver the element of scienter. There could be no recovery except for fraud and deceit, as the contract was executed and there was no effort to rescind the contract, (Silt: v. Springer, 236 Ill. 276,) and if the plaintiff sought to recover in tort for fraud and deceit it was necessary to aver and prove scienter. (Schwabacker v. Riddle, 99 Ill. 343; Foster v. Oberreich, 230 id. 525.) In Holdom v. Ayer, 110 Ill. 448, which was an action for fraud and deceit in the sale of corporate stock, on page 453 it was stated: "In such cases it is not enough the representations made by the defendant were false,—they must have been known by him to be false. This point has been so often ruled in this court the question is not now open for discussion. In all actions like the one being considered the holding is uniform that to warrant an action for deceit the false representations must have been knowingly made with the intent to deceive. The fraud and, the scicnter constitute the grounds of the action. (Wheeler
v. Randall, 48 Ill. 182; Hiner v. Richter, 51 id. 299; Merwin v. Arbuckle, 81 id. 501; Schwabacker v. Riddle, 99 id. 343; Mitchell v. Deeds, 49 id. 416.) Other cases in this court declare the same doctrine." And in the Riddle case, supra, on page 348, it was said: “We are aware of no authority which will sanction a recovery in an action for deceit unless a false representation has been made knowingly with intent to deceive. As said in Weatherford v. Fishback, 3 Scam. 170, 'the fraud and the scienter seem to constitute the grounds of the action. A knowledge of the falsity of the representations must rest with the party making them, and he must use means to deceive.'—Walker v. Hough, 59 Ill. 375; Mitchell v. Deeds, 49 id. 416; Tone v. Wilson, 81 id. 529."
The first special count of the declaration did not contain one element, viz., scienter or guilty knowledge, which it was necessary to aver and prove to make out a cause of action. When, therefore, the court instructed the jury that if the "plaintiff has made out his case as laid in his declaration, or any count thereof, they must find for the plaintiff," it informed the jury that there could be a recovery, without proof of scienter, upon the first special count of the declaration, which was clearly wrong. The defendant denies that he made any representations to the plaintiff as to the financial condition of the Titze & Mullen Manufacturing Company or that he was familiar with its financial condition, but stated he told the plaintiff to investigate its affairs for himself, and said the plaintiff made such investigations as he saw fit as to its financial condition. To permit a recovery by proof of the facts stated in the first special count of the declaration would be to permit a recovery in a case where no liability was made out by averment or proof. The second special count contained an averment that the defendant not only made false representations as to the financial condition of said corporation, but that he knew such representations were false. The jury may have believed the representations were made and that they were false, but they may have thought the plaintiff had failed to sustain the allegations in the second special count that the defendant knew such representations were false and that for that reason there could be no recovery under the second special count, but as the first special count contained no averment that the defendant knew the representations made by him were false and the court had informed them there could be a recovery in favor of the plaintiff if any count of the declaration was proven, they may have found upon that count in favor of the plaintiff. This is not a question whether the first special count of the declaration would be good after verdict, but the question here is, did the plaintiff make out a good cause of action under that count of the declaration by proving the averments of that count to be true. This court has held that plaintiff's instruction herein referred to should never be given, if at all, except in case where the declaration, and each count thereof, "contains a complete statement of a cause of action.” Illinois Terra Cotta Lumber Co. v. Hanley, 214 I11. 243; Krieger v. Aurora, Elgin and Chicago Railroad Co. 242 id. 544; Cromer v. Borders Coal Co. 246 id. 451.
It is urged that, conceding it was error to give to the jury plaintiff's first instruction, the error was cured by instructions given to the jury on behalf of defendant. The instruction was peremptory in form and directed the jury to find in favor of the plaintiff if he had proven his case as laid in any one count of his declaration. The instruction could not thus be cured. Illinois Central Railroad Co.
Smith, 208 Ill. 608; Illinois Terra Cotta Lumber Co. v. Hanley, supra; Krieger v. Aurora, Elgin and Chicago Railroad Co. fupra; Cromer v. Borders Coal Co. supra.
The judgments of the circuit and Appellate Courts will be reversed and the cause will be remanded to the circuit court for a new trial.
Reversed and remanded.
SARAH LEGATE, Appellant, vs. Robbie LEGATE, Appellee.
Opinion filed February 25, 1911–Rehearing denied April 6, 1911.
1. DEEDS-equity will not reform deed made without consideration. If a grantor attempts to make a deed without any valuable consideration and the conveyance is so imperfectly drawn as not to accomplish the grantor's purpose, a court of equity will not lend its aid to make the gift perfect by reforming the deed.
2. SAME—when only question is whether there was a valuable consideration. Where it is clear from the evidence under a bill to reform a deed that the grantor intended to include certain lots in his conveyance, which were omitted from the description in the deed through the mistake of the scrivener, the only legal question as to the right of the complainant to relief is whether there was a valuable consideration for the conveyance.
3. SAME—when rendition of services by sister to brother is valuable consideration. Even though services rendered by one member of a family to another while residing together are presumed to be gratuitous, yet if a deed is executed to the member rendering such services, not as a gift to her by the grantor but to compensate her for the services rendered to the grantor and other members of the family, the deed, when executed, constitutes a contract for which there is a valuable consideration, and a court of equity may reform a clear mistake in the deed, even though there was no express contract for compensation before the deed was executed.
CARTWRIGHT, HAND and DUNN, JJ., dissenting.
APPEAL from the Circuit Court of Edgar county; the Hon. E. R. E. KIMBROUGH, Judge, presiding:
F. C. VANSELLAR, for appellant.
J. K. LAUHER, and F. W. DUNDAS, for appellee.
Mr. CHIEF JUSTICE VICKERS delivered the opinion of the court:
This is an appeal from a decree of the circuit court of Edgar county dismissing a bill, for want of equity, filed in that court by Sarah Legate against Robbie Legate for the reformation of a deed executed by Israel Legate, a widower, to the appellant. The theory of the bill is that Israel Legate contracte:d. in his lifetime, with appellant to convey to her certain real estate in consideration of services rendered and to be rendered, as housekeeper, for him. The court below, believing that the evidence of a contract was insufficient, dismissed the bill, and Sarah Legate has prosecuted an appeal.
The evidence shows that the appellant and Israel Legate were brother and sister. Robbie Legate, the appellee, is the only child and heir of Israel Legate. For about thirty years before his death Israel Legate lived at home with his mother and sister Sarah, and other members of the family. Their mother was very old and an invalid. Sarah did substantially all of the housework, such as cooking and washing and other household duties. About five months before his death Israel Legate became afflicted with cancer of the liver. He was able to be up until four or five weeks before his death. During his illness the appellant nursed him and prepared his meals and served them to him in his room. She was very kind to her brother as well as to the other members of the family. Israel Legate was worth about $15,000 in real estate and $1000 in personal property at the time of his death. A few days before his death Israel Legate asked his physician how long he thought he would live. The physician advised him that he could not live many days, and told him that if he had any business to arrange it would be well for him to have it attended to. In reply to this statement he said that his business was in good shape and he had nothing to arrange, except he wanted to give Sally (appellant) some town lots because she had always been good to him, or words to that effect. Israel Legate sent for Wiley Rogers, a notary public, to come over and make a conveyance to appellant. The notary came over and the old deeds to the lots were produced, and those containing the particular lots he desired to convey were separated from the others and handed to the notary, with the instruction to prepare a deed conveying those lots to appellant. The par