89 Ill. 102 | Ill. | 1878
This case was before us at the June term, 1876, and is reported as Maxwell v. Longenecker et al. 82 Ill. 308, to which we refer for a statement of the facts.
We discover nothing in the present record, in respect to the terms upon which the $817 of money belonging to Wagner & Weakley was held by appellant, materially differing from what is there disclosed. The evidence clearly shows that this money was to be paid out on the order of Wagner & Weakley, and that it was so paid out. There is no pretense that appellant was indebted to appellees for work done by them for him, nor is there any pretense that any part of the money held by appellant was set apart by agreement with Wagner & Weakley for appellees, or that they ever ordered him to pay appellees.
If it should be conceded that the evidence shows that appellant, notwithstanding, the fact was otherwise, represented that he held the money to pay appellees, and promised to do so upon their completing the work, and that they, relying upon this representation and promise, did complete the work, and we should thereupon hold that appellant is estopped to deny the truth of what he represented, and must make good his promise, there still could.be no recovery under this declaration, for in no count are there averments warranting the admission of such evidence.
To recover on such state of facts, if a recovery thereon could be had, there should have been a special-count averring them. Hite v. Wells, 17 Ill. 91; Eddy et al. v. Roberts, id. 508. The judgment is reversed.
Judgment reversed.