Gen. No. 15,048 | Ill. App. Ct. | Jun 3, 1910
delivered the opinion of the court.
The record contains no contradiction of the testimony of Werner and ¡¡STewman as to the representations made by the plaintiff, through McCarthy, at the time the defendants made the order for the goods upon which this action is brought. The evidence shows that the representations made by McCarthy were false; that they were designed to and did deceive the defendants, and through such deception the defendants were led to believe that they were dealing with the Elgin Mational Watch Company. They believed, and had reason to believe, they were offered and were purchasing goods manufactured by the latter company. The evidence convinces us that the plaintiff intended to deceive the defendants as to the character of the goods, and also as to the corporation the defendants were dealing with. The representations made to the defendant were a part of the fraudulent scheme formed by the officers, manager and agents of the plaintiff to deceive the public and the purchasers of its goods, not only as to the character and value of the goods, but as to the institution offering the goods to the trade. The false representations made were material, in our opinion, and the fraud practiced vitiated and renders voidable the alleged contract of purchase. Upon the facts shown by the evidence the law will not afford the plaintiff a remedy. National Bank v. Hall, 101 U.S. 43" date_filed="1880-01-18" court="SCOTUS" case_name="National Bank v. Hall">101 U. S. 43; Boston Ice Co. v. Potter, 123 Mass. 28" date_filed="1877-06-28" court="Mass." case_name="Boston Ice Co. v. Potter">123 Mass. 28; Arkansas Smelting Co. v. Belden Co., 127 U.S. 379" date_filed="1888-05-14" court="SCOTUS" case_name="Arkansas Valley Smelting Co. v. Belden Mining Co.">127 U. S. 379; Mueller v. North Western University, 195 Ill. 236" date_filed="1902-02-21" court="Ill." case_name="Mueller v. Northwestern University">195 Ill. 236; Elgin National Watch Co. v. Loveland et al., 132 Fed. Rep. 41.
The evidence shows that the goods shipped by the plaintiff, and rejected by the defendants, were different from the samples exhibited by McCarthy, and did not correspond with them in any particular. The defendant Werner opened the package, while the express company’s messenger waited, and examined the goods. He testified that they did not correspond with the samples exhibited to him in any particular. His evidence on this point is uncontradicted. The defendants, therefore, rightfully rejected the goods.
It appears without dispute that the goods, by the terms of the contract, were to be shipped by the American Express Company. Delivery to the United States Express Company was, therefore, not a delivery to the defendants, until the goods reached them, and they were then rejected by the defendants as above stated. The title never passed to the defendants.
The judgment is reversed with a finding of fact.
Reversed with finding of fact.