25 Ill. App. 313 | Ill. App. Ct. | 1888
The bill in this case avers the execution by the complainant to the Consolidated Rapid Transit and Elevated Railroad Company of Chicago, of an instrument, by which the complainant, among other things, consented to the construction by said company of an elevated railroad along the alley in the rear of certain lots belonging to the complainant, and seeks to obtain the cancellation of the instrument on two grounds: 1, that it was executed without consideration, and 2, for fraud. The first question presented by the appeal arises upon the defendants’ demurrer to the bill, and in considering that question we are of -course confined to the averments of the bill itself.
It does not distinctly appear from the bill whether said instrument was executed by the complainant under his seal or not, but as it is described in the bill as a deed or license granting to said company certain rights, it must be assumed, as against the complainant, that it was an instrument under seal. This conclusion, if not the necessary result of the express language of the bill, arises from the rule that a pleading should be construed most strongly against the pleader. If the instrument were of a character less solemn than a specialty, it must be presumed that the complainant would have so alleged. Assuming then, that the instrument was under seal, it is sufficient to say in relation to the first ground for relief, that the seal imports a consideration sufficient to sustain the validity of the -instrument. A party to a contract under seal can not avoid the contract on the ground that it is a nudum pactum.
The bill alleges that the complainant was induced to execute said instrument by fraud, and the fraud alleged-consists: 1, in presenting said instrument to the complainant for signature when he was busy in transacting his affairs and business, and 2, in making certain representations to him in relation to the advantages to him which would result from his signing said instrument and from the construction and operation of the proposed elevated railroad.
As to the first element of fraud there is no averment that provisions of the instrument were concealed from or misrepresented to the complainant, or that he had not a sufficient opportunity to examine and read the instrument, or that he did not read it or was not fully informed as to its contents. So far as appears by the bill the complainant executed said instrument deliberately and with full knowledge of all its provisions.
The representations averred are merely that it would be to the complainant’s interest to sign the paper, and that the construction and operation of the proposed elevated railroad would increase the value of the complainant’s property over 100 per cent. It is manifest that these are not representations which, even if false, are sufficient to avoid a contract. They are not representations of existing facts, but mere expressions of opinion as to the future benefits to the complainant of the projected railroad. It is nowhere averred that said representations were fraudulently made -and the question of their truthfulness is in its nature only mere matter of opinion. The rules of law on this subject are- too well settled to require a citation of authorities, and it is only necessary to say, that the frauds alleged are plainly insufficient to sustain a decree annulling and canceling the contract.
The averments that the defendants, unless restrained from so doing, will record said instrument and proceed to act under it by using it in obtaining their franchise and by constructing and operating their proposed elevated railroad, can not avail the complainant, since, if the instrument is a valid one, the defendants have both the legal and equitable right to make such use of it, and there are no averments in the bill by which the invalidity of the instrument is shown. Hot only, then, must we hold that the court below erred in overruling the demurrer, but also that the' averments of the bill are insufficient to sustain the decree.
We are also inclined to the opinion that the court erred in overruling the defendants’ motion to vacate the decree and permit the defendants to answer and defend. The affidavits filed in support of the motion show a meritorious defense. They establish the fact that the instrument in question was under seal, and, therefore, not liable to be avoided for want of consideration in fact, and they completely negative all charges of fraud. On the question of diligence it appears that, by the rules of practice in force in the Circuit Court, contested motions, including demurrers, are entitled to be placed upon what is called the calendar of contested motions, and that such calendar is to be called each Monday, and that motions not reached on that day shall go over and have precedence on the following Monday. The demurrer in this case was on the calendar of contested motions subject to call on Monday, February 28th, and it appears that said demurrer not being reached, and the call of the calendar not being completed on that day, the court announced orally that the call would be proceeded with on the following day. Ho order to that effect was entered of record, nor was the rule abrogated or in any way modified, but on the following day the call was resumed without the knowledge or notice to the defendants or their solicitors, and said demurrer being reached and no counsel appearing for the defendants; the demurrer was overruled for want of prosecution.
The rules of court, so long as they remain in force, constitute rules of law regulating the practice in the court by which they are adopted, and while they may be abrogated or modified by the court at its pleasure, so long as they are in force, they should be followed, and litigants and their solicitors are not chargeable with negligence in assuming that such rules will be pursued and enforced. We can not see that the defendant’s counsel were in any degree negligent in assuming that the demurrer in this case would not be called up for disposition on Tuesday, March 1st, the day it was overruled, and for absenting themselves from court ou that day. The affidavits then showing a meritorious defense, and also showing that the defendants and their counsel were in no degree chargeable with negligence, their motion to vacate the decree should have been sustained.
For the errors above pointed out, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.
