| Ill. | Oct 6, 1886
delivered the opinion of the Court r
We are unable to perceive any valid objection to a recovery-under the common counts.- Appellees furnished materials- and expended money for the use of appellant, upon its request. At the time that request, was made, the agent of appellant falsely represented to appellees that a state of facts existed under which it was the duty of appellees to furnish the materials and expend the money for the use of appellant by virtue-of the terms of a prior contract, whereby appellees were obligated to sell and deliver to appellant, machinery, etc., of a-particular quality and soundness. If that representation had. been true, appellees were already paid for the materials furnished and money expended; but not being true, the amount remained to be paid by appellant. There was no mistake- or misrepresentation in regard to the use to which the materials furnished should be applied, and for which the money was to be expended,—there was simply falsehood^and misrepresentation in regard to whether facts existed making it the duty of appellees to furnish these materials and pay out-that money on account of a consideration already received. The proof of the delivery of the materials and the payment. of the money made a prima facie case, entitling the plaintiff to recover, and that case was not rebutted by showing that the delivery and payment were pursuant to the old contract, when it was also shown that the facts which were represented to exist, whereby it would have been the duty of appellees to have made the delivery and payment under that contract, did not, in fact, exist, and that the representations of appellant’s agent in that regard were false and fraudulent. The defence fails, because it is based on falsehood and fraud. The case, in principle, is as if A goes to a clerk in a store or shop and tells him to let him have certain goods—that he has already made payment therefor to the principal or to another clerk. The clerk, believing him, delivers the goods. Subsequently the clerk learns that the representation that he had paid for the goods is false, and thereupon A is sued, on the common counts, for the value of the goods. The contract-is fully performed upon the one side, and nothing remains upon the other but to make payment. The fact that, by willful misrepresentation, the creditor is at first deceived into the belief that payment has already been made, can make no difference. It was never intended the goods and money should be given away, or that anything but money should be accepted in exchange for them.
But if the form of the action should have been in tort, the objection on that ground should have been specifically urged at the first opportunity, for, under the provisions of section 23 of chapter 110, entitled “Practice,” (2 Starr & Curtis’ Stat. 1787,) it was competent, at any time before final judgment, to so amend the pleadings as to change the form of action from assumpsit to case. The objection is of a purely formal character, and not having been urged in apt time, is to be deemed as waived.
An objection is urged in regard to the improper admission of certain evidence; but, on examining the record, we think the objection is based on a misapprehension. The ruling of the court seems to have been properly limited, and no question of law, in that respect, is presented.
The main controversy in the trial court was one of fact. The judgment of the Appellate Court precludes further question in that regard, and we discover no error of law of sufficient importance to require a reversal of the judgment. -
The judgment is affirmed.
Judgment affirmed.