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to disbursements given by the former Code upon the reference of a claim against a decedent.

The order of the general term striking out disbursements should be reversed, and the judgment as entered at special term be affirmed, with costs of the appeal to this court.

(All concur.)

FARWELL and others v. HANCHETT and others!

(Supreme Court of Illinois. November 13, 1886.) 1. SALE-RESCISSION FOR FRAUD REPLEVIN-BURDEN OF PROOF.

In an action of replevin by a vendor for goods sold, on the ground that the sale was procured by fraud, and has been rescinded by him, he has the burden of showing (1) that the vendee bought the goods levied on from him; (2) that the vendee practiced deceit, and deceived vendor; or (3) that vendee did not intend to pay for

the goods when he bought them. 2. SAME-DEMAND AND REFUSAL.

Where replevin is brought for fraud, and the jury find from the evidence that the defendant obtained the goods by a purchase based upon fraudulent representations

a demand and refusal by the plaintiff previous to the action are unnecessary.3 3. REPLEVIN-RESCISSION OF SALE FOR FRAUD-RETURN OF CONSIDERATION AFTER SUIT

BROUGHT.

Where plaintiff rescinds for fraud the contract under which he has sold goods, and fails to return the consideration, his action of replevin is premature; and although, under section 22 of the replevin act, (2 Starr & C. St. c. 119, par. 22,) he will be permitted to return the consideration after bringing the action, and thus maintain it, in case the fraud is admitted, he cannot do this when the fraud is contested, in which case his action fails as premature. Doane v. Lockwood, 115 Ill. 490, S. C. 4 N. E. Rep. 500, distinguished. 4 Appeal from appellate court, First district. Flower, Remy & Gregory, for appellants.

The instruction of the court that plaintiffs must prove a demand, in order to recover, was erroneous. Doane v. Lockwood, 4 N. E. Rep. 500. The appellate court held that as the jury found the property in the defendant Heller, and that a note given by defendant Heller in part payment was not tendered back till the trial, the error will not avail the appellants. Both positions are untenable. The first, because the jury found the property in the defendant in consequence of the court's instructions so to find, unless a demand was proved; the second, because Doane v. Lockwood, supra, permits rescission and tender after the bringing of the action, and it can make no difference whether this is before or after the trial begins. Section 22, c. 119, Rev. St. Ill., permits judgment for plaintiff in replevin, if he “shall in the mean time have become entitled to the possession of the property,” which may certainly be construed to include the time of trial. If a man buys on credit, not intending to pay for them, this is a fraud on the seller that entitles him to avoid the sale. Hennequin v. Naylor, 24 N. Y. 139; Byrd v. Hall, 41* N. Y. 647; Johnson v. Monell, Id: 655; Devoe v. Brandt, 53 N. Y. 462; Davis v. Stewart, 8 Fed. Rep. 803; Talcott v. Henderson, 31 Ohio St. 162; Powell v. Bradlee, 9 Gill & J. 220, 248, 278; Dow v. Sanborn, 3 Allen, 181; Burrill v. Stevens, 73 Me. 395; Oswego Starch Factory v. Lendrum, 57 Iowa, 573; S. C. 10 N. W. Rep. 900; Stewart v. Emerson, 52 N. H. 301; Donaldson v. Far

1

1 For opinion on rehearing, see 11 N. E. 875.

* See Amer v. Hightower, (Cal.) 11 Pac. Rep. 697, and note; Sleeper v. Davis, (N. H.) 6 Atl. Rep. 201.

3 See Oswego Starch Factory v. Lendrum, (Iowa), 10 N. W. Rep. 900; Carl v. McGonigal, (Mich.) 25 N. W. Rep. 516.

• As to the necessity of making or tendering restitution of the consideration received on a sale or other contract sought to be rescinded, see Higham v. Harris, (Ind.) 8 N. E. Rep. 255, and note; Worthington v. Campbell, (Ky.) 1 S. W. Rep. 714, and note; Red Jacket Tribe v. Gibson, (Cal.) 12 Pac. 'Rep. 127; Wells v. Neff, (Or.) 12 Pac. Rep. 84.

well, 93 U. S. 631; Bowen v. Schuler, 41 III. 192; Lockwood v. Doane, 107 Ill. 235.

These cases repudiate the old doctrine that the sale can be rescinded for fraud only, where induced by false representations of the purchasers; and hence the instruction of the court that plaintiffs must prove that defendant Heller "used means to deceive, and did deceive, them, and that he did not intend to pay for the goods when he bought them,” is erroneous.

Where duplicate bills, copied from the sale-book, which are books of original entry, are offered, and are objected to generally, and not on the ground that these bills are secondary evidence, the case stands as if the books themselves had been offered. Stone v. Great Western Vil Co., 41 Ill. 85, 94, 95.

The commencement of a suit in assumpsit to recover the price of the goods, which is subsequently voluntarily dismissed, is not a ratification of a fraudulent contract. Peters v. Ballistier, 3 Pick. 495.

Brandt & Hoffman, for appellees.
A demand, in such a case as this,

is a condition precedent to bringing suit. Moriarty v. Stofferan, 89 Ill. 528. The property being duly in the custody of the sheriff, demand should have been made on him. Wells, Repl. § 368. In order that misrepresentations may vitiate a contract, the party making them must know their falsity, and use means to deceive. Walker v. Hough, 59 Ill. 375; St. Louis & s. E. Ry. Co. v. Rice, 85 Ill. 406. The misrepresentations must be untrue when made. Grier v. Puterbaugh, 108 Ill. 607; Holdóm V. Ayer, 110 Ill. 448. Appellants, by bringing an action of assumpsit, affirmed the contract of sale, and could not afterwards replevy them. Kellogg v. Turpie, 93 Ill. 267. Appellants could not rescind the contract without first offering to surrender the note. They cannot rescind in part, and affirm in part. Kellogg v. Turpie, 93 Ill. 265; Bowen v. Schuler, 41 Ill. 192; Wolf v. Dietzsch, 75 Ill. 205; Smith v. Brittenham, 98 Ill. 197.

*

MAGRUDER, J. This is an action of replevin, brought by the appellants against the appellees, in the superior court of Cook county, on December 12, 1884. The defendants below pleaded non cepit; non detinet; property in the defendant, Simon Heller; property in one Abraham Heller; and, as to the defendant Hanchett, who is the sheriff of Cook county, justification under an execution against Simon Heller in favor of Abraham Heller.

Simon Heller carried on business in Chicago, as a dry-goods merchant, from April 4, 1882, to December 9, 1884, on which latter date the execution aforesaid was levied upon his stock, and possession thereof was taken, by the sheriff. During this period, he was in the habit of buying goods from the plaintiffs, who were wholesale dry-goods merchants. On April 4, 1882, he executed and delivered to the plaintiffs a written statement, which contained the following language: “I, Simon Heller,

for the purpose of obtaining a credit with John V. Farwell & Co., of Chicago, Ill., for goods which I may now or hereafter purchase of them, do make the following statement and representations of my present true financial circumstances, wealth, and mercantile respectability, which said representations shall be the basis of my credit with John V. Farwell & Co., both for my present purchase, and for all purchases for and during the period of five years from this date; agreeing to immediately notify them of any material change in or of my business matters during the period above mentioned.” The statement showed, at that time, assets, $9,150, and liabilities, $4,260. Among the liabilities was specified a debt of $2,700 to Abraham Heller. The property replevied consisted of various articles of dry goods, alleged to have been bought of the plaintiffs during the period aforesaid.

The jury before whom the case was tried returned a verdict finding "title to property in Simon Heller, subject to the execution in favor of Abraham Heller in the hands of the defendant Hanchett, as sheriff.”

Counsel for appellant say in their brief: “In this court appellants claim error only in giving two instructions for appellees, the third and seventh."

The seventh instruction is as follows: “The jury are instructed that the burden of proof is on the plaintiffs to prove, by a preponderance of the evidence, that Simon Heller bought the goods in controversy from them; that he used means to deceive, and did deceive, them; and that he did not intend to pay for the goods when he bought them.” This instruction announces three propositions: The first is that the goods replevied must have been goods which were purchased by Simon Heller of the plaintiffs. Evidence was introduced tending to show that Heller bought goods of other parties besides the plaintiffs, between April, 1882, and December, 1884. If, among the goods replevied, there were articles that had been purchased of such other parties, plaintiffs had no right to replevy them. It was therefore a proper question to be submitted to the jury whether the particular goods taken by the plaintiffs under their writ had been sold to Heller by them, or by somebody else. Hence there is no error in the first proposition. The second proposition is that the defendant Heller must have used means to deceive plaintiffs, and that such means must have had the effect of deceiving them. The theory of the plaintiffs was that they were induced to sell these goods to Heller by fraud on his part, and that, in consequence of such fraud, they were entitled to rescind the contract of sale, and bring replevin. In order to establish the fraud charged, it was incumbent upon the plaintiffs to prove that the defendant used “means to deceive or circumvent them.” The second proposition announces no other doctrine than that laid down by us in the following cases: Walker v. Hough, 59 Ill. 375; St. Louis & S. E. Ry. Co. v. Rice, 85 Ill. 406; Grier v. Puterbaugh, 108 Ill. 602. The third proposition is that it must appear that defendant did not intend to pay for the goods when he bought them. We held in Bowen v. Schuler, 41 Ill. 192, that "a purchase of property, made with the intention not to pay for it, is a fraud, as between the buyer and the seller, and passes no title.” Hence we see no error in the third proposition.

But appellants complain that the seventh instruction required them to prove, in order to sustain their charge of fraud, not only that the defendant did not intend to pay for the goods when he bought them, but also that he used means to deceive, and did deceive, them; in other words, that they were required to prove both the second and third propositions above indicated, when the proof of either without the other would have been sufficient. It may be true, as claimed, that, in order to rescind a sale for fraud, it is not necessary to show that the sale was induced by the false representations of the purchaser, if it be established by the acts of the purchaser, or otherwise be made to appear, that he did not intend to pay for the goods when he bought them. But we do not think that this instruction is justly liable to the criticism made upon it. When a man buys goods intending at the time not to pay for them, he must, in some way, lead the seller to believe that he does intend to pay for them; otherwise he could not obtain possession of them. By inducing such a belief in the mind of the seller, he deceives him, and uses means to deceive him. Buying without the intention of paying involves the use of deceit. Therefore the third proposition includes the second. We do not consider the instruction sufficiently erroneous to justify a reversal, though it may be somewhat inartificially drawn. It is substantially the same as the instructions upon the same subject which were asked for by the plaintiffs and given for them.

The third instruction is as follows: "The jury are instructed that, before the plaintiffs can recover in this case, they must prove that they demanded the goods in controversy of Simon Heller, or of some one who at the time had them in his possession; and, unless such proof is made, the plaintiffs cannot recover in this case.” This instruction was erroneous. The plaintiffs claimed that the sale was fraudulent. The jury were to determine from the evidence wŁether it was fraudulent or not. It is well settled that, “if goods have been unlawfully obtained, proof of a demand by the true owner, and a refusal to deliver them up, is not necessary.". Butters v. Haughwout, 42 Ill. 18; Bruner v. Dyball, Id. 34; Clark v. Lewis, 35 Ill. 417; Woodward v. Woodward, 14 Ill. 466; Hardy v. Keeler, 56 Ill. 152. The instruction should have been qualified by the statement that, if the jury should find from the evidence that the purchases by Heller were fraudulent, then his possession, as against plaintiffs, was unlawful, and no demand was necessary. As drawn, it told the jury that a demand was necessary in any event, whether the sale was fraudulent or not. But a verdict will not always be disturbed because of an error in an instruction. When it appears that the verdict was right, and could not have been otherwise, if the erroneous instruction had not been given, and that the party complaining of such instruction was not injured by it, the fact that it was given will not cause a reversal of the judgment. Lundy v. Pierson, 83 Ill. 241; Burling v. Illinois Cent. R. Co., 85 1. 18.

It is undisputed that on December 1, 1884, Simon Heller gave plaintiffs his note for $550, and that such note was given on “his past-due account” for the goods replevied in this suit. On the trial of the case the attorney for the plaintiffs offered and tendered this note to the defendant in open court, and filed it in court for defendant's benefit. The fact of such tender is an admission by the plaintiffs that it was given for the purchase of the goods in controversy. If it was executed to pay for other goods, why bring it into court, and make a tender of it, upon a trial of the right to replevy these particular goods? The object of making a tender of it was to rescind the contract for the sale of the property in controversy in this suit, by the plaintiffs to defendant Heller. Where a party has received any valuable consideration upon the sale of property, he cannot rescind the contract without first returning, or offering to return, to the purchaser, the consideration received, whatever it may be, nor can he rescind the contract as to one part, and affirm it as to another part. The rescission, if made, must be full, and embrace the entire contract. He cannot retain the consideration he has received, or a portion of it, and rescind as to a portion of the property he has sold, and recover that portion back. In case of fraud on the part of the vendee of chattels, where nothing but the note of the vendee is received, the vendor, to rescind the sale, must return the note, and this must be done before replevin is brought; otherwise the action is premature. Bowen v. Schuler, 41 Ill. 192; Moriarty v. Stofferan, 89 Ill. 528; Doane v. Lockwood, 115 Ill. 490; S. C. 4 N. E. Rep. 500.

We do not understand the case of Doane v. Lockwood, supra, to hold that, where the action is replevin, the plaintiff can rescind a sale for fraud by offering to return the note after suit brought, when the defendant denies that the goods were obtained by fraud, and when the question whether the sale was a fraudulent one or not is to be submitted to and passed upon by the jury. In that case the court instructed the jury to find for the defendant. The fact that the goods were obtained from the plaintiffs by fraud was not controverted on the trial. The defendants were held to have admitted that the fraud of the defendant, Lockwood, was such as to give the plaintiffs the right to rescind the contract of sale. It was accordingly there decided that, inasmuch as the plaintiffs offered to surrender the notes after the suit was begun, and before the cause came to trial, and in that way rescinded the contract of sale on account of the fraud practiced upon them, they became “entitled to the possession of the property,” under the statute, and it was error to order a return of the property to the sheriff.

In the case at bar the jury was not instructed to find for the defendants. The fact of fraud in the purchase of the goods was not only not admitted, but was hotly contested. The right of the plaintiffs to rescind on account of fraud was denied. We therefore think that the offer of the plaintiffs to return the note' on the trial, and thereby rescind the sale, came too late. When the offer was made, the fraudulent character of the sale was not yet established, and consequently the right of immediate possession was not “in them,” nor did they thereby, in the language of the statute, “become entitled to the possession of the property.”

Inasmuch, therefore, as the plaintiffs below did not offer to return the note, and thereby rescind the contract of sale, before beginning the replevin suit, they were not entitled to recover. The right of possession was not in them, but in defendants, when the suit was brought. It follows that the error committed by the giving of the third instruction was immaterial. The result, without such error, must have been the same.

The judgment of the appellate court is therefore affirmed.

(118 Ill. 477)

ELY V. Dix and others.

(Supreme Court of Ilinois. November 13, 1886.) 1. POWERS—TO EXECUTORS TO SELL LAND-SURVIVING EXECUTOR-REV. ST. ILL. CA. 3,

2 97.

Under section 97 of the Illinois administration act of 1872, (Rev. St. c. 3,) where the executors of a will are vested with the discretionary power of selling the real estate, and one of them refuses to act, and another dies before such sales are made, the remaining executor has the same power, and his sales are as valid, as if all had

joined therein.1 2. SAME_OBJECTS OF POWER NOT ACCOMPLISHED-DEATH OF LIFE-TENANT.

The death of the testator's widow, to whom the entire estate had been left for life, does not cause the power to sell real estate, vested in a surviving executor, to faii, where two-thirds of the estate is given over on the death of the widow, to married daughters, the income to be applied by them and their husbands to their support, and to the education and maintenance of their respective children, and where the estate consists largely of vacant and unproductive land. Appeal from First district. In equity. Specific performance. Wm. C. Reynolds, for appellant. Wilson & Moore, for appellees.

MAGRUDER, J. Appellees, who are the executor and devisees under the will of John A. Dix, deceased, filed their bill in the superior court of Cook county against the appellant to enforce the specific performance of a contract dated February 8, 1886, made between Morgan Dix, “sole surviving executor of the estate of John A. Dix," and the appellant, for the sale by the former to the latter of about 60 acres of land in E. I S. E. & section 24, township 38, range 14 E. of third P. M., in Cook county, except certain portions occupied by the Hyde Park & Lake Water-works, and except the right of way of the South Chicago Railway Company, for the sum of $35,000, payable $8,000 in cash, and the balance in installments, secured by notes and trust deed upon the property. The superior court decreed in favor of appellees, and the appellate court of the First district affirmed the decree. The case is brought before us by appeal from such decision of the appellate court.

Appellant declines to carry out the contract of purchase, on the ground that the vendor cannot give good title to the property. The objection made to the title is the alleged want of power in Morgan Dix, as sole surviving executor, to make sale of the land in question. Hence the questions which the record presents for our consideration arise upon the construction of the will of John A. Dix. Its provisions are as follows:

“I, John A. Dix, of Seafield, West Hampton, Suffolk county, do make and

See Vernor v. Coville, (Mich.) 22 N. W. Rep. 282; Vernor v. Coville, (Mich.) 20 N. W. Rep. 75, overruling Rumney v. Coville, (Mich.) 15 N. W. Rep. 56; Bailey's Case, (R. I.) 1 Atl. Rep. 131, and note.

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