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order, and by him indorsed and turned over to defendant, who paid Miller the sum of $500 for his services in said transaction; that defendant for the purpose of carrying out his design to cheat and defraud plaintiff and others, caused the deeds and trust deed to be filed for record, and caused the said Chicago Title & Trust Company to be named as trustee in said trust deed and in said notes, for the purpose of committing a fraud upon the plaintiff and others who might afterwards, in investigating the value of said notes and security, believe the transactions represented by said deeds and notes to be bona fide, when in truth and in fact said property was never sold to Maginnis nor to Miller for any sum; that defendant caused the trust deed to be made in such a manner that it would appear to be given upon the said entire premises known as 188 East Monroe street, Chicago, as a security for $75,000, when in fact the only interest said defendant or Maginnis or Miller had in said premises was a leasehold which defendant well knew to be entirely worthless; that defendant obtained an abstract showing the trust deed securing said notes, and placed the notes on the market in Chicago for sale. The plaintiff avers that subsequently she applied to a broker in Chicago to secure for her an investment, and was thereupon shown the abstract above mentioned, showing that the property in question had been sold by the defendant, through Maginnis, to Miller, and that the Chicago Title & Trust Company was the trustee named in the trust deed for $75,000 given by Miller to secure the notes above mentioned, and that she inferred therefrom that the amount stated in the deeds as purchase price was correct; that upon examining the trust deed she was made to believe that one-fourth of the purchase money had been paid, and therefore concluded the premises were worth $100,000, and that the trust deed was ample security to any party owning the notes; that thereupon plaintiff was shown four of the $1,000 notes, one of them being as follows:

"$1,000. Chicago, Illinois, August 6, 1897. Fifteen months after date, for value received, I promise to pay to the order of myself the sum of $1,000 at the office of Chicago Title and Trust Company, Chicago, with interest thereon at the rate of six per cent. per annum. This note is secured by a trust deed to Chicago Title and Trust Company, trustee, of even date herewith, on seven-story and basement building, No. 188 East Monroe street, city of Chicago, county of Cook and state of Illinois, and is to bear interest at the rate of seven per cent. per annum after maturity. Charles Z. Miller. Trust No. Loan No. .”

Written across the left-hand end was the following: "Chicago Title and Trust Company, 100 Washington street, Title and Trust Building, Chicago, Ill." It was indorsed on the back, as follows:

"For and in consideration of the interest

being paid in full the time is extended to May 1, A. D. 1899. Charles Z. Miller.

"Trustee's Certificate. This is to certify that this note is one of the following eighty-three notes for the aggregate amount of $75,000: Eleven notes for $500 each, ten notes for $750 each, sixty-two notes for $1,000 each, secured by trust deed to Chicago Title and Trust Company, trustee, recorded in recorder's office of Cook county, Ill., as Doc. No. 2,586,840. Chicago Title and Trust Co., by Wm. C. Niblack, Secy."

And plaintiff avers that, relying on the truth of the statement in the deeds and trust deed and the statement and representations appearing upon the said notes, she purchased four of the notes, paying therefor $4,000; that afterwards she learned that the pretended sales by the defendant to Maginnis and by the latter to Miller were bogus transactions, and that the trust deed was without consideration, and that all this had been done for the purpose of placing upon the market the fraudulent and valueless notes; that the notes are without value; that the leasehold interest of the defendant in said property was and is worthless; and that she has been damaged to the extent of $6,000. As before said, a general demurrer was sustained to this declaration, and the suit was dismissed, at the cost of the plaintiff.

Alden, Latham & Young, for appellant. W. N. Gemmill, for appellee.

WILKIN, J. (after stating the facts). The sole question is whether or not this declaration states a good cause of action. It is not denied by counsel for appellee that the declaration sufficiently alleges, in substance, that appellant was fraudulently induced to invest her money in fictitious and worthless securities, nor that the scheme by which they were executed and placed on the market was originated and put forward by appellee; but his position seems to be that if the appellant could have investigated the true condition or value of the property constituting the supposed security for the payment of the notes which she purchased, and failed to do so, she must take the consequence of her own imprudence.

The consideration of $100,000, stated in the deeds (which would usually tend to indicate the value of the property), is alleged to be false; but counsel says it is a well-established rule that the purchaser cannot maintain an action against the vendor for false statements in regard to the value of the property purchased, or its good quality, or the price he has been offered for it. It is true that the general rule is that statements as to the value of a business or of real or personal property, made for the purpose of inducing another to buy or to invest money, may be. and generally are, treated as mere expressions of opinion, and if so intended and understood will not constitute fraud, in the absence of

any misrepresentation of material, extrinsic facts, or the concealment of such facts. 14 Am. & Eng. Enc. Law, 41. The reason of the rule is that such statements are expressions of opinion; but where they are made with the Intention that they shall be understood as statements of fact, and not as the expressions of opinion, they will constitute fraud. Murray v. Tolman, 162 Ill. 417, 44 N. E. 748. We said in that case (page 423, 162 Ill., page 750, 44 N. E.), quoting from Pickard v. McCormick, 11 Mich. 68: "It is only because statements of value can rarely be supposed to have induced a purchase without negligence that the authorities have laid down the principle that they cannot usually avoid a bargain." Here the consideration for the conveyance from appellee to Maginnis was stated to be $100,000, the conveyance from the latter to Miller again stated the consideration to be $100,000, and the deed of trust purported to secure the payment of $75,000, and these are three things alleged to have been done in pursuance of a design to cheat and defraud the plaintiff and others. It cannot be denied that the consideration stated in the two deeds and trust deed was calculated to lead any one to believe that the property mentioned therein was, to say the least, of greater value than it really was; neither can it be said that the statements so made in the deeds, and especially that in the deed of trust, are mere expressions of opinion, which should not have been relied upon by persons examining the record. As was further said in the Murray Case, supra, quoting from the Pickard Case: "It cannot be laid down as a matter of law that value is never a material fact, and we think the circumstances of this case illustrate the impropriety of any such rule. They show a plain and aggravated case of cheating, and it would be a deserved reproach to the law if it exempted any specific fraud from a remedial action where a fact is stated and relied upon, whatever may be the general difficulty of defrauding by means of it." See Allen v. Hart, 72 Ill. 104. The rule relied upon by appellee does not apply to the facts of this case. The statements of value in said deeds, as alleged in the declaration, having been made in pursuance of a scheme on the part of the defendant, constituted fraud and deceit.

Counsel further contends there is no allegation that the defendant ever knew the plaintiff or ever made any representations of any sort to her. It is true, the representations were not by means of conversations between the parties; but the rule is as stated in the Law of Fraud, by Bigelow (page 467), that a representation is anything short of a warranty, "proceeding from the action or conduct of the party charged, which is sufficient to create upon the mind a distinct impression of fact, conducive of action. The most usual and obvious example is an oral, written, or printed statement. But statement is by no means necessary. Any conduct capable of be

ing turned into a statement of fact is a representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts. It is sufficient that there were acts such as to mislead a reasonably cautious or prudent man in regard to the existence of a fact forming a basis of or contributing an inducement to some change of position by him." In this case, the recitals in the deeds and trust deed, stating a consideration which inferred that the property was of great value, whereas the interest of the defendant therein was of no value whatever; the memorandum on the notes that they were secured "by a trust deed to Chicago Title & Trust Company, trustee, of even date herewith, on seven-story and basement building, No. 188 East Monroe street, city of Chicago," implying that the trust deed conveyed the fee-simple title; the recital in the trust company's certificate that these notes were a part of a series of notes amounting to $75,000, "secured by trust deed"; and likewise the statement that "in consideration of the interest being paid in full the time is extended to May 1, 1899," signed by Miller,-are in law representations calculated to deceive and mislead any third persons dealing with those notes. Especially is the statement by Miller misleading and deceptive. It amounted to a statement that the notes were originally given to him as a part only of the purchase price for the property; and that statement, taken with the recitals of consideration $100,000, naturally leads to the inference that he received $25,000 of the purchase price in money and $75,000 in said notes. Accepting as true the allegations of the declaration, as we must on this general demurrer, the scheme was an artful one, calculated to lead an innocent third party to believe that the property was ample security for a much larger sum of money than that invested by the plaintiff. Moreover, if appellee concocted a scheme for placing fraudulent and worthless securities upon the market, he cannot be heard to say that parties induced to buy them shall suffer for their failure or neglect to discover his fraud. The rule is that a party guilty of fraudulent conduct, whereby he induces another to act, will not be allowed to impute negligence to the latter as against his own deliberate fraud. "Even where parties are dealing at arm's length, if one of them makes to the other a positive statement, upon which the other acts (with the knowledge of the party making such statement) in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the party guilty of fraud can take no benefit." Linington v. Strong, 107 Ill. 295.

Counsel says there is no allegation that the defendant ever obtained any portion of plaintiff's money, and he assumes that defendant is not, therefore, liable in damages to plaintiff. It is not necessary, in an action of this kind, to show that the defendant had any

interest in the subject-matter or that he received any benefit therefrom. Weatherford v. Fishback, 3 Scam. 170; Eames v. Morgan, 37 Ill. 260; Endsley v. Johns, 120 Ill. 469, 12 N. E. 247, 60 Am. Rep. 572. "He is liable, not upon any idea of benefit to himself, but because of his wrongful act and the consequent injury to the other party." 14 Am. & Eng. Enc. Law (2d Ed.) 153. We think the declaration stated a good cause of action, and the demurrer should have been overruled.

The judgments of the appellate and circuit courts are reversed, and the cause is remanded, with directions to overrule the demurrer. Reversed and remanded.

(197 Ill. 471)

CHICAGO & GRAND TRUNK RY. CO. v.

SPURNEY.

(Supreme Court of Illinois. June 19, 1902.) SERVANT-INJURIES-PLEADING-VARIANCE

ASSUMED RISKS.

1. Where, in an action by a servant for injuries, the negligence declared was the failure to provide any means of warning plaintiff when machinery he was operating was put in motion, and the evidence established without contradiction the truth of such allegation, admission of testimony that the foreman or caller generally called out that work was about to begin, or that the machinery was about to be started, and on the occasion of the injury no one so called out to the workman, was not a material variance, since the charge of negligence was broad enough to include a charge that defendant did not provide on the day of the injury any means for giving plaintiff any such notice, and the proof tended to establish the gist of the negligence charged.

2. Where, in an action for injuries, the proof establishes an allegation of failure to provide any means of warning for plaintiff when machinery he was operating was about to be put in motion, failure to establish a further allegation, that the machinery on the occasion when the injury was inflicted was started at a time when it was unusual or not customary to start it, is not ground for reversal, since such further averment may be regarded as immaterial.

3. A servant injured by the starting of machinery without any warning did not assume the risk.

Error to appellate court, First district.

Action by Frank Spurney against the Chicago & Grand Trunk Railway Company. From a judgment in favor of plaintiff, affirmed by the appellate court (97 Ill. App. 570), defendant brings error. Affirmed.

Kenesaw M. Landis (Sol. Rosenblatt, of counsel), for plaintiff in error. Theodore G. Case, for defendant in error.

BOGGS, J. The judgment of the superior court of Cook county, awarding the defendant in error a judgment in the sum of $15,000 in an action on the case to recover damages for personal injuries sustained by him, was affirmed by the appellate court for the First district. This is a writ of error to bring the judgment of affirmance in review in this ourt.

The injury was inflicted on the 20th day of

April, 1888. The cause was submitted to and tried by three juries, and has twice been heard in the appellate court. It is complained the trial court permitted the introduction of evidence to establish that the plaintiff in error company was guilty of specific grounds of negligence not alleged in the declaration, and that the trial court should have sustained the motion entered by the defendant company to direct a peremptory verdict on the ground there was no evidence to show the defendant was guilty of the negligence charged in the declaration. The trial proceeded on the first count, only, of the declaration. In that count, after stating the plaintiff was in the employ of the said defendant as a laborer in its grain elevator, and that it was his duty, among other things, to assist in loading and unloading grain and to guide and handle certain grain shovels so used in said elevator and cars to unload cars of grain, which said grain shovels were connected with machinery which was operated by steam; that said grain shovels were moved by a rope, one end of which was attached to an automatic pulley geared upon the main shaft of said machinery, the other end of said rope being attached to the said grain shovel, and said shovels being guided by defendant in error and other operators who handled them in the car of grain to be unloaded,-the declaration proceeded as follows: "And thereupon it became and was the duty of the said defendant to provide the plaintiff with reasonably safe machinery, means, appliances, and facilities for doing said work, and to exercise ordinary care to protect the plaintiff while so at work; yet the defendant, not regarding its duty in that behalf, then and there negligently failed to provide any means of warning for the plaintiff when said machinery was about to be put in motion, more particularly when said machinery was about to be put in motion at a time of day when it was not usual or customary to run said machinery; that thereby and therefrom the said plaintiff, with due care and caution for his own safety in that respect, and while, in the course of his said employment, then and there adjusting and placing in a proper position for use the rope connecting said grain shovel with said machinery, was by reason of the negligent, careless, and improper conduct of the said defendant in setting said machinery in motion (which act on the part of the said defendant the said plaintiff had no reason to expect or anticipate), causing said rope to be drawn rapidly upward upon said automatic pulley, caught and entangled in said rope, and was drawn and thrown violently upon and against a certain post and timber there through which said rope passed; that thereby the plaintiff's leg was bruised, crushed, broken, and mangled, and was injured so that it had to be amputated and reamputated, and various other portions of the body of said plaintiff

We do

were mangled, bruised, and injured." The evidence established, without contradiction, the truth of the charge in the declaration that the plaintiff in error had not provided any means of warning the defendant in error or other of its workmen that the machinery was about to be put in operation. "Where a tort is averred and the substance of the allegation is proved, a variance is not material if the opposite party has not been misled." 22 Enc. Pl. & Prac. 566. The alleged variant testimony had no tendency to mislead the plaintiff in error company, as will hereinafter be made to appear. The defendant in error as a witness, and the other witnesses produced in his behalf, were allowed, over the objection of the plaintiff in error, to testify that the foreman, or a workman denominated a "caller," would generally, before the machinery was started, call out "Ready-work," or "I am going to start," and that on the occasion when the defendant in error was injured this employé did not so call out to the workmen. not think it was error reversible in character to admit the testimony that the foreman or caller generally called out that work was about to begin or that the machinery was about to be started. The testimony was not received for the purpose of showing that the defendant in error had the right to rely upon such action on the part of the caller, as the basis for a charge of negligence, because of the omission to take such action on the day the defendant in error was injured. Such action on the part of this caller or foreman was not in obedience to any direction or command of the plaintiff in error company, but was simply voluntary upon his part. The purpose to be attained by the course frequently or generally pursued by the caller or foreman was to notify the employés that the hour had arrived to begin work, in order that all workmen should be ready and at their places when the machinery should begin to move. Incidentally, it might serve to advise workmen to beware of any danger that would attend upon the movement of the machinery. The admission of the proof was, therefore, not improper for consideration as bearing on the question whether the defendant in error, on the occasion, was in the exercise of ordinary care for his own safety. Furthermore, the charge of negligence in the declaration, that the plaintiff in error "failed to provide any means of warning for the plaintiff when said machinery was about to be put in motion," is broad enough to include a charge that the plaintiff in error did not, on the day in question, provide any means for giving the defendant in error any such notice. The substance or gist of the charge of negligence made in the declaration is that no warning was given that power was about to be applied to the machinery and the same set in motion. The proof complained of was not, therefore, at variance with the allegation of

the declaration, but corresponded with the substance thereof. Nor had such testimony any tendency to mislead the plaintiff in error. It tended to prove the gist of the negligence charged in the declaration, namely, that the machinery was started on the occasion in question without warning to the defendant in error. In City of Chicago v. Seben, 165 Ill. 371, 46 N. E. 244, 56 Am. St. Rep. 245, the first count in the declaration charged that the city negligently permitted a deep and dangerous hole over and into a certain catch-basin below the street to remain open and uncovered, and that the plaintiff fell therein and was injured, and the second count averred that the city negligently permitted a catch-basin in the street to remain open, uncovered and unprotected, and that the plaintiff fell into the catch-basin. We said (page 376, 165 Ill., page 245, 46 N. E., 56 Am. St. Rep. 245): "Proof that the defendant fell into a hole is not at variance with the allegation that he fell into a 'hole over and into a certain catch-basin.' The hole was really a sewer inlet, designed to carry the water off into the catch-basin." In Railway Co. v. Hundt, 140 Ill. 525, 30 N. E. 458, it was said (page 529, 140 Ill., page 460, 30 N. E.): "It is contended on behalf of appellant that a material part of the allegation in the declaration is that the appellee was in the act of removing the hand car when the freight car was switched upon him, and that the evidence in the record fails to show that this was the fact. As we understand the record, there is evidence tending to prove that the freight car causing the damage which is the subject of the litigation was 'kicked,' as it is termed by the witnesses, onto the track designated No. 1, after appellee began, with the aid of Schielcke, to remove the hand car from the main track to the track designated No. 1; and that is sufficient for the present question. * But, waiving this, the gist of the allegation in the declaration is that while appellee, who was in appellant's employ, was removing a hand car from one track to another to avoid an approaching train, appellant negligently caused a freight car to be switched and run against the hand car which appellee was removing, and thereby wounded appellee. It is immaterial when the act of causation was begun. It is sufficient if its force was continued to and it in fact did the damage to recover for which the suit is brought."

There was no proof that the machinery, on the occasion when the injury was inflicted, was started at a time when it was unusual or not customary to start the same. That did not, however, constitute error for which this judgment should be reversed. Allegations which are descriptive of the identity of that which is legally essential to the claim or charge, or allegations which are intended to set forth the contract out of which arises the duty which is said to have been omitted

or violated, are material and cannot be rejected, but must be proven as alleged. Departure in the proof in respect of such allegations is regarded as a material variance. Railroad Co. v. Wieczorek, 151 Ill. 579, 38 N. E. 678; 22 Enc. Pl. & Prac. 552, 565, 588; Railway Co. v. Friedman, 146 Ill. 583, 30 N. E. 353, 34 N. E. 1111. In the Friedman Case the right of recovery was based upon the alleged failure of the railway company to observe and perform the duty which devolved upon it, as a common carrier, by reason of the obligation arising out of an express or implied contract, entered into by the railway company, by which Friedman became a passenger on one of its trains. It was therefore held necessary that the allegations descriptive of the contract to carry him as a passenger should be proven as alleged, and that any variance between the allegations and proof as to the termini of the journey was held to be fatal. Allegations not of the character above mentioned, but such as are foreign to the merits of the cause, and which may be wholly rejected without injury to the full and correct statement of the claim or cause,-known as impertinent allegations,--or allegations which are but statements of unnecessary particulars in connection with or as descriptive of what is material,-known as immaterial averments,need not be proven. 22 Enc. Pl. & Prac. 535538; Thrasher v. Ely, 2 Smedes & M. 139. The allegation in the declaration as to the duty of the plaintiff in error, when about to put the machinery in motion at times or hours of the day when it was not usual or customary to run the machinery, may be regarded as an immaterial allegation. The case made by the proof upon the part of the defendant in error,-and no proof except in that behalf was introduced,-did not relate to an occasion when the machinery was put in motion at an unusual time. In City of Rock Island v. Cuinely, 126 Ill. 408, 18 N. E. 753, we said (page 411, 126 Ill., page 755, 18 N. E.): "The rule is, that the allegation of the declaration must be broad enough to let in the proof, and that no evidence will sustain a verdict that does not find support in such allegation. But in actions for torts it by no means follows that every allegation of matters of substance must be proved. In general, it will be sufficient if enough of the facts alleged in the declaration are proved to constitute a cause of action. "There is,' says Chitty, 'a material distinction between the statement of torts and of contracts, the former being divisible in their nature, and the proof of part of a tort or injury being, in general, sufficient to support the declaration.' Chit. Pl. 305. 'In torts, the plaintiff may prove a part of his charge if the averment is divisible and there be enough proved to support his case.' Id. 386, 387; Cheetham v. Tillotson, 5 Johns. 430; Hill. Rem. 162-360." It is a well settled rule of pleading that no allegation which is descriptive of any part of

a matter which is legally essential to the claim or charge can be altogether rejected, inasmuch as the variance destroys the legal identity of the claim or charge alleged with that which is proved; and it is an equally well settled rule that when such averment may be wholly rejected without prejudice to the charge or claim, proof is unnecessary and a discrepancy between the allegation and the proof in that respect is unimportant. Bank v. Peel, 11 Ark. 750. “Accordingly, it is not necessary to prove impertinent allegations, or, in other words, those altogether foreign to the merits; and a variance between the proof and immaterial averments, which may be stricken out as surplusage without destroying or changing the legal effect of the remainder, is not fatal unless the allegations, though unnecessary, are descriptive of the identity of that which is legally essential to the claim, charge or defense." 22 Enc. Pl. & Prac. 535.

The insistence cannot be maintained, it should be ruled, that as matter of law the defendant in error assumed the risk of the danger from which he suffered the injury. The risks assumed by a servant are such, only, as cannot be obviated by the employment by the master of reasonable measures of precaution. Risks that are unreasonable or extraordinary or that arise from the master's negligence are not assumed. City of La Salle v. Kostka, 190 Ill. 130, 60 N. E. 72. The judgment is affirmed. Judgment affirmed.

(197 III. 327)

CHICAGO CITY RY. CO. v. MORSE. (Supreme Court of Illinois. June 19, 1902.) STREET RAILWAYS-INJURY TO PASSENGERS

EVIDENCE-SUFFICIENCY-APPEAL

QUESTIONS REVIEWABLE.

1. Where, in an action by a passenger against a street railway company for injuries, it appeared that the car was so crowded that he had to stand in the aisle, and hold onto one of the straps, and that the car stopped suddenly, throwing a number of passengers against him with great force, causing the injuries, the declaration was sufficiently supported to make the question one of fact for the jury, and hence not reviewable after affirmance by the appellate court.

2. The question whether the case made by such evidence should be submitted to the jury was sufficiently doubtful as to justify an appeal by defendant without incurring the statutory penalty for delay.

3. The question whether the damages awarded are excessive is one of fact, and not reviewable by the supreme court after affirmance by the appellate court.

Appeal from appellate court, First district. Action by Orlin B. Morse against the Chicago City Railway Company. From a judgment of the appellate court (98 Ill. App. 662) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

William J. Hynes, Samuel S. Page, and Watson J. Ferry (Mason B. Starring, of coun

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