(285 III. 103) To constitute actionable fraud, it must be shown, among other things, that person alleging fraud suffered injury thereby. 2. FRAUD 58(1)-INJURY-PROOF. Injury to the person defrauded, with all other essentials of fraud, must be proved to a reasonable degree of certainty. 3. FRAUD 25-INJURY. Owner of garage, who was induced by fraud, RIGHTS OF SECOND PURCHASER-NOTICE OF If subsequent purchaser knows of deed executed by vendor and his wife to prior purchaser, or has such notice as would cause a prudent man of ordinary diligence to ascertain whether prior deed had been executed, he is bound by first deed, though his own was recorded first. 5. APPEAL AND ERROR 994(3)-CREDIBILITY OF WITNESSES QUESTION FOR TRIAL COURT. Weight of testimony of witnesses is for trial court, as it is in better position to determine the truth of their testimony. 6. QUIETING TITLE 44(3)-RIGHT OF PRIOR PURCHASER-SUFFICIENCY OF EVIDENCE. In suit to remove cloud on title by prior purchaser of garage, vendor and subsequent purchaser claiming that prior purchaser falsely rep resented he was taking an option, evidence held to justify chancellor in entering decree against vendor and subsequent purchaser. 7. DEEDS 56(2)~DELIVERY. 13. PRINCIPAL AND AGENT 69(4)—SALE TO BROKER FOR RESALE-DOUBLE COMMISSIONS -FRAUD. When seller and ultimate buyer of realty are each willing to treat broker, purchasing for resale to ultimate buyer, as principal, and not as agent, both being satisfied with price, and with paying additional amount in nature of commissions, payment does not invalidate sale to broker, or show fraud. 14. EQUITY 267-PLEADING AMENDMENT. Question of allowing amendments is very largely in sound discretion of trial court, which did not err, in absence of meritorious reason to contrary, in refusing to permit defendants in suit to remove cloud on title to file amended answers and cross-bills. CARTER, J. This was a bill filed by the defendant in error, Arthur Struve, in the circuit court of Will county, against plaintiffs in error, Gustav A. Tatge and Henry F. Bahlman, to remove a cloud from the title to certain real estate in the village of BeechAnswers were filed, and er, in said county. Bahlman also filed a cross-bill. On the trial in the circuit court the issues were found in favor of defendant in error, and Bahlman's cross-bill was dismissed for want of equity. The decree also found that defendant in error was the owner in fee simple of the Whether a deed is delivered depends on the premises, and that as part of the $5,000 grantor's intention. 8. DEEDS 200-DELIVERY-EVIDENCE. Grantor's intention, as to delivery of a deed, may be shown by words or acts, or both, together with the circumstances. 9. DEEDS 208(1)—DELIVERY IN ESCROW SUFFICIENCY OF EVIDENCE. In suit to remove cloud from title by prior purchaser against vendor and subsequent purchaser, evidence held to justify conclusion that deed to prior purchaser was given to justice of the peace to be held in escrow until completion of abstract, etc.; also that purchase money was deposited with justice, who was therefore au thorized to deliver deed and abstract. 10. ESCROWs 10 TARY. DELIVERY BY DEPOSIWhere deed is acknowledged before proper officer and left with him in escrow, to be turned over under certain conditions, when such conditions are fulfilled, delivery by officer will be delivery to grantee. 11. APPEAL AND ERROR 1058(2)—HARMLESS ERROR-EXCLUSION OF EVIDENCE. Where witness later answered question fully, plaintiffs in error were not injured by trial court's first and wrongful refusal to allow question to be answered. - 12. EQUITY 427(3) — PLEADING PRAYER FOR RELIEF. GENERAL General prayer for relief is sufficient to support any decree warranted by facts alleged in bill and established by evidence. consideration he had assumed a mortgage indebtedness of $2,000 thereon, and that he deposited with Frank Hunte $3,000 to be used in paying off the other indebtedness, the balance above said other liens to be paid to Tatge; that there was a judgment of $2,590.62, which was a lien against said property; that Bahlman was wrongfully in possession and had been for some time, and defendant in error was entitled to recover from Bahlman the rental value of said property at $40 a month from the date of recording defendant in error's deed until the delivery of the possession of the premises to him; that a deed from Tatge to Bahlman should be declared null and void, as having been executed with full knowledge of defendant in error's rights. From this decree this writ of error was sued out. Defendant in error and plaintiffs in error all resided in the village of Beecher, in Will county, and had lived there for quite a long time previous to the transactions here in litigation. Tatge had been for some time running a garage. Struve was a banker, and also engaged to some extent in the real estate and insurance business. Hunte was in the general merchandise business and was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes also justice of the peace. Bahlman had pre-paper signed at the house in the evening was viously been a farmer, as had Tatge, but merely an option. There were also some for some time previous to these transactions younger members of the Tatge family preshe had engaged in the sale of automobiles ent part of the time, and they testified somein conjunction with Tatge. The property in- what to the same effect as the elder Tatge. volved in this proceeding consists of a ga- Struve and Hunte testified that when the rage and the tract of land, 75 feet frontage, deed was acknowledged it was agreed that on which it stands, in the village of Beecher. before the transaction was closed Struve Tatge had been the owner and conducted should have an abstract made from the date the garage on this property for some time of a former owner's title, and that the deed previous to December 5, 1916. The evidence be held in escrow by Hunte until the ab tends to show that he was in debt to various stract was completed and Struve could have people at that time, among others to Bahl- it examined; that in the meantime Struve man; that he had talked with Struve and would deposit with Hunte enough to pay with Hunte with reference to the sale of off the balance of the purchase price over the garage property; that he had put the and above the $2,000 mortgage; that this price at from $8,000 to $12,000, and then had was agreed to, and Hunte took the deed come down to $6,000, but finally, on Decem- away with him to hold for that purpose. ber 5, 1916, after a talk with Struve, gave him an option for the sale of the garage at $5,000, signing on that date a paper in which was stated briefly the description of the property and a list of the personal property in the garage, and agreeing to furnish an abstract from the former owner, T. L. Miller, down to December 5, 1916, showing clear title, and agreeing further to pay to Struve a commission of $150 in case a sale was made, and stating that the option was to expire December 10, 1916. The evidence on behalf of Struve, as testified to by himself and Hunte, is to the effect that this option was given early in the afternoon of December 5th, and that later in the day Struve telephoned Tatge that he was ready to purchase the property at the terms stated and wanted a conveyance made to him. They also testified that Tatge and Struve went to Hunte's store to ask him to draw the deed; that from there the three went to the garage, and an attempt was made to get the deed to the garage, in or der to find the description of the property; that a deed was found, but afterward discovered to be the wrong one, and that afterward all three, with Tatge's son, went to Tatge's house to find the right deed. The son was a young married man 25 years of age, and assisted his father in running and managing the garage. When they reached Tatge's residence the right deed was found, and Struve and Hunte testified that Hunte drew a warranty deed conveying the property from Tatge and his wife to Struve, subject to a $2,000 mortgage, the description being taken from the deed brought out by Tatge; that the description was compared with the old deed and found correct, and that then Tatge signed it and called his wife from an adjoining room to sign it also; that at Struve's suggestion Hunte asked her if she understood what she was signing, stating that it was a deed to the garage, and that she said she understood it, and that she then signed and acknowledged it be. fore Hunte, who was a notary public. The testimony of Tatge and wife and his son was all to the effect that they understood the Tatge and the son and the latter's wife all denied that such statements were made, and insist that the only talk that was had at the time was in regard to executing an option, and that when he was leaving the house, with what they thought was the option, Struve said to keep quiet about this, as the sale was not made yet. Struve denies making any such statement. It should be said, further, in connection with the execution of the paper on the evening of December 5th at Tatge's house, that Tatge, while conceding that he could read English very poorly claimed that he did not read the deed, because his glasses were broken, and that the deed was not read aloud to him, and it is not claimed that the deed was read to Mrs. Tatge after she came; but it is claimed that she understood it was a deed at the time she executed it. There is no controversy that the paper was a deed and was thus executed, as testified to by Struve and Hunte, the only question in controversy being whether the Tatges understood it was an option, rather than a warranty deed. Bahlman the next day heard something about the transaction, and as the elder Tatge owed him a debt, and he was afraid he might lose it if the garage were sold, he sought out Struve and asked him if he had bought the property, and Struve testified that he told him he had bought it, but did not want to tell him the consideration, or who the intended purchaser was. The testimony all goes to show that it was understood that Struve was not buying the property for himself to manage and control, but that he intended to dispose of it to This conversation between some one else. Bahlman and Struve took place in the saloon of Bahlman's brother, in Beecher. The bartender overheard a portion of this conversation, and his testimony at the trial tends strongly to corroborate that of Struve. Bahlman denies that Struve at that time told him he had bought the property; his testimony tending to show that he understood Struve had an option to purchase the property, but had not actually purchased it. There was talk at that time between Struve and Bahlman as to Tatge owing Bahlman and that Bahlman wanted his claim taken care of and was going to see Tatge about it. Struve told Bahlman to let him know whether he wanted him to take care of it, and later Bahlman told him that Mrs. Tatge had agreed to pay his claim. Bahlman admitted, upon cross-examination, that he had understood from various sources that Struve had bought the property; that he had talked with Hunte about it. Hunte testified he told Bahlman that Struve had purchased the property. Bahlman in effect denies Hunte's testimony, claiming he understood that Struve only had an option for the purchase of the property. Bahlman admitted that he stated falsely to Struve, during their conversation on December 6th, the amount of his claim against Tatge, and that he told Struve it was $500, when, as a matter of fact, Tatge owed him approximately $2,500. A day or two after this Bahlman, whose claims were represented by judgment notes, entered them in judgment, and thereafter negotiated with Tatge as to the purchase of the property, on the ground, as he claimed, that he could thus protect himself better in collecting his judgments. He claimed that he understood from Tatge that he had only given an option to Struve, and that they went to another town to consult with certain persons as to the effect of an option, and were told by them that when the time of the option expired it was perfectly safe for Tatge to deed the property to some one else; that a notice was therefore prepared and served upon both Struve and Hunte by the Tatges, stating that the time of the option had expired and they did not wish it to run longer, and that then Tatge and his wife executed a warranty deed to Bahlman. Before this was done, Bahlman testified he went to the county seat of Will county and searched the records, to see if any paper had been filed by Struve, and, as he found none, he completed the purchase of the garage from Tatge, agreeing to pay $5,000 for it. It appeared that about the time of the execution of this second deed Hunte had obtained the completed abstract, and sent word to Tatge and Struve that he was ready now to close up the transaction; that Struve had previously given him two checks, amounting to $3,500, to pay the balance over and above the $2,000 mortgage which Struve had agreed to assume; that Tatge refused to come near him to settle up the transaction, but that Struve came, and he shortly thereafter gave him the deed from Mr. and Mrs. Tatge to the premises. However, before this transaction was closed up, Bahlman had recorded his deed, and the deed to Struve was not recorded until several days after. [1-3] It will thus be seen that the evidence was very sharply conflicting on the material questions involved on this hearing. Counsel for plaintiffs in error claim, and Ballman so alleged in his cross-bill, that the deed from Tatge and wife to Struve was obtained through fraud, and should therefore be set aside as null and void against Tatge or the later purchaser, Bahlman. The general rule is that, to constitute actionable fraud, it must be shown, among other things, that the person who is alleging fraud has thereby suffered an injury, and this, as well as all the other essentials of fraud, must be proved to a reasonable degree of certainty. 20 Cyc. 12, and cases cited; Merwin v. Arbuckle, 81 Ill. 501; 2 Pomeroy's Eq. Jur. (3d Ed.) § 898. We cannot see on this record how Tatge was injured by the transaction. The deed to Struve had a consideration of $5,000, and that is the consideration in the deed to Bahlman; so we think it is clear without controversy on this record that Tatge is not entitled to any relief as against Struve. [4] The question remains whether Bahlman is entitled to relief, and that turns on the question whether he had such notice as required by law to put him on inquiry with reference to the transaction between Tatge and Struve before he purchased the property and took his deed. If he knew of the deed executed by Tatge and his wife to Struve, or had such notice as upon reasonable inquiry would cause a prudent man, in the exercise of ordinary diligence, to ascertain whether such deed had been executed, then he is bound by the first conveyance regardless of the fact that his deed was recorded first. Rupert v. Mark, 15 Ill. 540; Morrison v. Kelly, 22 Ill. 609, 74 Am. Dec. 169; Dickenson v. Breeden, 30 Ill. 279. The decree in effect holds that Bahlman knew at the time that Tatge had previously sold the property to Struve. This being the situation, the conveyance from Tatge to Bahlman would be fraudulent as against the original conveyance to Struve. Ludlow v. Gill, 1 D. Chip. (Vt.) 49, 1 Am. Dec. 694, and note; 2 Pomeroy's Eq. Jur. (3d Ed.) § 660. [5, 6] The briefs argue at some length the consistency or inconsistency of the testimony of the various witnesses. The weight of the testimony of these witnesses was for the trial court. The chancellor saw and heard them and was in much better position to judge whether their testimony was true than we are from the record, alone. Ackman v. Potter, 239 Ill. 578, 88 N. E. 231, and authorities there cited. We cannot say that the testimony did not justify the chancellor, on this record, in entering the decree against plaintiffs in error. Indeed, we think he was amply justified, on this record, in so doing. [7-10] Counsel for plaintiffs in error also argue that there was no delivery of the deed from Tatge to Struve. Whether a deed is delivered depends upon the intention of the grantor, and this intention may be shown by words or acts, or by both, together with the attending circumstances. Hill v. Kreiger, 250 Ill. 408, 95 N. E. 468. The evidence fully justifies the conclusion that the deed was given to Hunte to be held in escrow until the completion of the abstract, and that it was to be turned over to Struve as soon as the abstract was brought down to date and found satisfactory to Struve, provided he deposited the balance of the purchase money with Hunt, to be used in accordance with the understanding when the deed was executed. The evidence justified the chancellor in finding that this purchase money was deposited with Hunte, and that therefore he was authorized to turn over the deed and abstract to Struve. Where a deed is acknowledged before a proper officer, and it is left with him in escrow, to be turned over, under certain conditions, when those conditions are fulfilled, the delivery by the officer will be a delivery to the grantee. Fletcher v. Shepherd, 174 Ill. 262, 51 N. E. 212; Hewitt v. Clark, 91 Ill. 605. [11] Counsel for plaintiffs in error also argue that it was error not to permit them, on cross-examination, to show the relation of Struve to the prospective purchaser, Wehmhoefer. The question complained of was not at first answered by this witness on cross-examination, but was answered later fully, and therefore, even though the trial court wrongfully refused to allow the question to be answered, plaintiffs in error were in no way injured by the first refusal. [12] It is also argued that no relief should be granted here, because the relief was not consistent with the theory and purpose of the original bill as filed, and supported by the allegations therein. There is a general prayer for relief in the bill, which is sufficient to cover all that the decree found. A general prayer for relief is sufficient to support any decree warranted by the facts alleged in the bill and established by the evidence. Rankin v. Rankin, 216 Ill. 132, 74 N. E. 763. The bill alleged the definite facts which justified the decree. The fact that Hunte had in his hands $3,500 in checks, instead of $3,000, the balance due, which was to be used in paying off Tatge's indebtedness, could not in any way be prejudicial to plaintiffs in error. [13] The complaint is also made by counsel for plaintiffs in error that Struve, from the testimony, understood he was to receive a double commission-$150 from Tatge and also a commission of $150 from the buyer, Wehmhoefer. We think the evidence clearly shows that at the time of the sale from Tatge to Struve it was understood that Struve was not purchasing the property to run the garage for himself. The wording of the option contract indicates that fact. The evidence also shows that neither Wehmhoefer nor Tatge was in any way injured by the agreement of either to pay the commission to Struve. They were not deceived in any way, or misled, as to the payment of either of these commissions. Each was satisfied with the price and the amount he received or paid. There is no proof that Tatge knew of Wehmhoefer's proposed purchase, or what Wehmhoefer was to pay for the property, and Wehmhoefer as to get his deed from Struve, and not from Tatge. A dual agency in itself is not unlawful, and we can see no reason, when two of the parties are each willing to treat the third as a principal, and not as the agent, and when both are satisfied with the price, and with paying an additional amount in the nature of commission, why such payment will invalidate the sale, or show there was fraud in its execution, when neither party was misled. Adams v. Larson, 279 Ill. 268, 116 N. E. 658, and authorities cited. There is nothing shown in this record as to the payment of commissions by Wehmhoefer or by Tatge that in any way caused any misunderstanding, or was used as a matter of misrepresentation to either of the plaintiff's in error. It seems also to be argued by counsel for plaintiffs in error that the decree is erroneous, because it does not provide that Struve pay 5 per cent. interest on all the moneys in the hands of Hunte, with whom the deed was left in escrow. We do not understand the merit of this argument. Struve had the money always at hand ready to pay over the balance of the purchase price from the time of the delivery of the deed to Hunte, and he was prevented from paying over this money by the acts of Tatge in selling the property to Bahlman. The controversy arose out of the wrongful acts of Tatge and Bahlman. Had it not been for this, the checks in the hands of Hunte would have been cashed at once, and the money turned over to the proper parties in accordance with the terms of the agreement made at the time the deed from Tatge was executed and delivered to Hunte. Neither do we think there is any merit in the contention of counsel for plaintiffs in error that the decree is erroneous in providing that Bahlman pay Struve $40 per month as the rental value of the premises during the time Bahlman remained in possession. The evidence clearly showed that $10 a Bahlman month rent was not too high. himself testified that he was receiving a rent of approximately $50 per month for the premises at the time of this hearing. [14] It appears from the record before us, also, that counsel for plaintiff's in error, at the conclusion of the hearing of the evidence, asked leave to file amended answers and cross-bills. He was denied this leave, and it is now urged that the court erred in thus denying his motion. The question of allowing amendments is very largely in the sound discretion of the trial court. No meritorious reason is urged why plaintiffs in error were injured in any way by the refusal to permit them to file amended answers and cross-bills. We do not think the court erred in so refusing. We find no error in the record. The de- [10. CRIMINAL LAW 761(6), 1172(3)-HARMcree of the circuit court will therefore be af- LESS ERROR-INSTRUCTION-ASSUMPTION OF FACT. firmed. Decree affirmed. (284 Ill. 465) PEOPLE v. SCOTT et al. (No. 12246.) (Supreme Court of Illinois. Oct. 21, 1918.) 1. HOMICIDE BILITY-THREATS. In a prosecution for murder, where the evidence as to who was the aggressor was conflicting, an instruction assuming that defendant was the assailant, while misleading, did not constitute reversible error. 11. CRIMINAL LAW 809- MISLEADING INSTRUCTIONS-REASONABLE DOUBT. It is not good practice in a murder case to give numerous and complicated instructions on reasonable doubt; such instructions tending to 158(3)-EVIDENCE-ADMISSI- be misleading. In a prosecution for murder, evidence that prior to the school district meeting at which the killing occurred defendant stated to witness that "there is going to be hell at the schoolhouse when that investigation took place," stated by the court to have been admitted to show defendant's condition of mind, was inadmissible as not supporting the issues involved. 2. CRIMINAL LAW SIBILITY-THREATS. 343-EVIDENCE-ADMIS Threats to commit the crime for which the accused is on trial are competent against him on the question of intent, but the language used or the circumstances under which used must be broad enough to include the injured person within its terms. 3. CRIMINAL LAW 786(2)-INSTRUCTIONS STATEMENTS OF ACCUSED. An instruction that the verbal statements of a defendant should be received with great caution as being subject to imperfection and mistake, etc., held properly refused. 4. CRIMINAL LAW 656(9)-EVIDENCE-ADMISSIBILITY. In a prosecution for murder, a question asked of deceased's sister whether she had "any interest in this case other than to see the per son punished who murdered your brother" should have been excluded as implying, by overruling objection thereto, that in the opinion of the court defendant was guilty of murder. 5. CRIMINAL LAW 1043(2)-APPEAL-SPECIFIC OBJECTIONS. In the absence of specific objection below to the form of a question asked, such objection cannot be urged on appeal. 6. CRIMINAL LAW 390 EVIDENCE DEFENDANT'S BELIEF. In a prosecution for murder claimed to have been committed in defense of accused's father, it was error to sustain an objection to a question asked of accused as to whether his acts were done, as he believed, in his father's or in his own defense. 7. HOMICIDE 301 INSTRUCTIONS FENSE OF ANOTHER. DE In a prosecution for murder, alleged to have been committed in defense of accused's father, instruction that accused had no right to shoot deceased if the jury believed the blow given the father by deceased was not calculated to produce great bodily harm was erroneous. 8. HOMICIDE 116(4)-SELF-DEFENSE-ACTUAL DANGER. Actual and positive danger is not indispensable to justify self-defense, and accused will not be held responsible for mistake as to the extent of the actual danger, where other judicious men would have been alike mistaken. 9. CRIMINAL LAW CURE OF ERROR. 823(6)-INSTRUCTIONS An instruction in a murder trial which limits the right of self-defense to actual danger is not rendered harmless by giving correct instructions on the subject. SELF-DEFENSE DE 12. HOMICIDE ☺—122 · Error to Circuit Court, Hardin County; E. T. Scott and Horatio Scott were convicted of manslaughter and murder respectively, and they bring error. Reversed and remanded. W. H. Rittenhouse, of Chicago, and James A. Watson, of Elizabethtown, for plaintiffs in error. Edward J. Brundage, Atty. Gen., Edward C. Fitch, of Chicago, and Clarence E. Soward, of Springfield, for the People. CARTER, J. At the March term, 1918, of the Hardin county circuit court plaintiffs in error, E. T. Scott and Horatio Scott, were tried for the killing of Claude Ball at Tower Rock schoolhouse, in said county, on October 16, 1916. The jury returned a verdiet finding E. T. Scott guilty of manslaughter and finding Horatio Scott guilty of murder, fixing his punishment at imprisonment in the penitentiary for 25 years. Motions for new trial and in arrest of judgment were overruled, and judgment entered on the verdict as to both plaintiffs in error. They then sued out this writ of error. E. T. Scott (called in the record Tom Scott) was president of the board of school directors of Tower Rock school district, a country district in said county. Horatio Scott (usually called in the record Ratio Scott) was his son. On the day of the killing a meeting was being held in said schoolhouse to investigate some trouble that had arisen in the school between E. T. Scott's children and their teacher. Scott had invited the other two directors and the county superintendent of schools, Miss Hattie Rittenhouse, to be present at this hearing. The teacher was a lady named Mrs. Ethel Blakely. She seemed to have had some difficulty with her husband, and at the time of the trial she called herself "Miss," apparently having been divorced or separated from her husband between the time she started to teach and the time of the trial. Scott's children insisted that the teacher had imposed upon them and had insulted them in reprimanding them for their conduct in school or as to not knowing their lessons. Scott became indignant over these charges and insisted on an investigation. The deceas For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |