*1 itemized. were not conclusions, for the because they nothing was allowed Ill. 409, Manowsky Stephan, $123.75 the evidence and the master asked taking and was item held to be excessive other fees. The last of about reduced to The evidence in this case consists .$50. intricate not voluminous and there no It is pages. of law or fact to be determined. or complicated questions allowance of excessive, and charge would be and sufficient for the work ample performed.
The decree will be affirmed in all respects except the item of the master for charged by determining will be issues in case reduced to decree $150, will be reversed the cause remanded, with directions decree modify accordingly.
Per Curiam : The foregoing opinion reported Commissioner Partlow as the hereby adopted opinion the court, and is entered in therewith. judgment accordance
Reversed directions. part remanded, (No. 18765. et al.
Charles L. Morel vs. Appellants, Alex Masalski
et al. Appellees.
Opinion December filed 1928. *2 for Leeicow, & appellants. LEFkow for Spence, appellees. & Slakis this opinion: reported Partlow Commissioner Morel, Morel and his Daisey Charles E. Appellants, L. for relief in circuit court of Cook their bill wife, filed Alex Masalski and against appellees, Josephine county his wife. A demurrer was sustained to bill Masalski, as it dismissed for want of and an was amended, equity, has appeal been to this court. prosecuted The amended bill alleged appellees were owners of an apartment building Chiсago. On September 15, entered into a written 1925, they contract with appellants for its sale for of which $47,000, $13,000 when paid' the contract was signed, to be paid May 1, 1926, a trust deed for $20,000 due in five was to years be executed to the Title and Trust Chicago sec- Company trusteе, a for ond balance mortgage was to be unpaid executed Bessie Zacharewicz as trustee, at the payable rate of On monthly. cent, payable at six per interest month, deed to warranty executed appellees 15, 1925, September com- until appellants in escrow which was appellants, placed the contract. May 7, On the provisions plied de- contract and the deed was with the appellants complied next them filed for record day. livered .the of the contract signing bill alleged рrior to the told appellees applied appellees reduction for a board of review of Cook county of review had taxes on the annum, reduced the taxes approximately per $411.60 taxes would be ensuing year approximately which was the basis for amount, made prorating tax between the delivered parties; appel- contract, lants written in which that in case agreed the taxes for were more than would refund pro rata difference between amount and what the were; taxes actually *3 prior to the execution of the contract appellants investigated the income from the and the various of expenses maintenance, and found that the income would cover the maintenance, the including interest, on monthly payments seсond and mortgage, general taxes, the taxes provided were not larger than represented at that the time the by appellees; contract was executed the tax bills for had not been issued but took appellants the statements of appellees to be true, and, upon acting such entered statements, into the income contract; from the premises insufficient to cover the of expense maintenance if the taxes for any
one year greater than approximately $4x1.60; that ap- pellants would not have entered into the contract had they known that the taxes were in greater one year than said amount; that the tax bill for when 1925, issued, showed a of valuation and a tax of $443, which appellants $4900 paid; that the tax bill for was issued on April 20, and showed a valuation of and a of tax $919; $9900 caused appellants issued for the tax bill
that after of board records be made of investigation that no reduc- found review and and assessors record showed but the made, had been tion in taxes other with some and conspiracy connivance appellees, 'assessment caused unknown, to appellants persons unlawfully and to be fraudulently in the assessor’s books to $4900, book collector’s warranty the county changed the gen- of causing made for change purpose appеaring from the figures bill to be made eral tax for 1925 taxes for thus book, making in the collector’s warranty appellees; as stated by in an amount approximately that the premises to the sale well knew prior appellees loss if taxes had be paid cоuld maintained at a be only the fraudulent representa- a valuation of upon $9900; tions of were made for purpose concealing true cost and maintaining premises expense into a contract which to enter induce appellants into, injury enterеd great otherwise would not have addi- are unable to damage; pay of taxes for and meet other payments tional amount are now will be due; interest which premises in either events subject foreclosure, tax sale or of which will expense loss put greаt irreparable and damage; are advised that will be called the difference upon to between them pay paid by the fraudulent and the tax bill of amount of the true tax and suit therefor is about to be premises, against them; entered order to make the cаsh pay- ment of due on May 1, offered 1926, appellants sale a owned were bungalow by them, obliged *4 it for sell less than could they have obtained from another that this offer party; they accepted sole cash to be made purpose realizing paymеnt their under contract that reason appellees; by thereof have sustained loss of they bungalow that since sustained; would not which otherwise they the con- to rescind have offered fraud they discovering all money account for to appellees, rеstore tract, premises in statu quo if received, in all things place should as in likewise, justice equity they will do they fore- and threaten to institute that refuse so to do do; they for the interest due, closure proceedings are unable to pay. to- defendant,
The bill made the two appellees parties trustee, Trust Company, Title and gether Chicago the con- that trustee, and Bessie Zacharewicz, prayed of trust two deed, the deeds tract, warranty of in- with all notes and other evidence trustees, together debtedness and all bе set thereto, documents pertaining aside and void; taken, declared null and that account be and appellees injunction be restrained from instituting to foreclose the until the further proceeding mortgage order of the court.
It is insisted amended bill stated a сause of action; were induced to purchase property upon fraudulent representations, injury; have offered to rescind the contract and en- titled to equitable relief; that one who is of fraud guilty cannot excuse himself by saying injured party negligent; had no to ascertain the opportunity amount for which the assessed, reason did not have access to the assessor’s books; misrepresentations, even though innocently made, con- may stitute fraud, and if thereon party acting is injured may have equitable relief. insist Appellees that a person cannot rescind contract which he was induced to execute by repre- sentations made to him, however false and fraudulent, where such representations relate to a matter of law of which one party presumеd to know as much as the other; order to entitle a person to rescind a contract *5 must be justi- to rescind fraud, seeking
ground party that matters of on the representations made; fied in relying fraud; not constitute that equity do opinion, although false, will afford relief where parties ample not have oppor- ascertain the truth of a before representation tunity act; will rescind a where the law not contract equity affords the injured adequate complete party remedy.
As rule, when false of a ma general representation terial fact is and a in of the made, party, truth, ignorance such false relies and is induced upon representation thereby to enter into a contract his such injury, representation will avoid when the contract, and injured party apt time offers rescind contract and invokes aid of a court of relief will equity, granted restored parties to their original Rockabrand, status. v. 118 Ill. ; (Baker 365 Mitchell id. McDougall, 62 rule is 500.) general v. that a of fraudulent will not be party guilty representations to charge of the permitted negligence other party. Evеn where the at parties arm’s if one of them dealing length, makes to the other a which the positive statement, upon other acts in its confidence of truth, and such statement is known to be false such conduct is party making it, fraudulent from it the of fraud can take no party guilty benefit. (Herpich Williams, v. Ill. v. 540; Gilbey Hamlin, id. 258; id. 532; Springer, Leonard v: id. Linington Strong, rules, These 295.) have some limitations. In however, all cases where it is hold one sought to liable false representations ques tion whether, arises under all necessarily the circumstances, seeking relief had рarty upon the repre rely made. this determining sentations question repre must be in the sentations viewed of all the light facts of actual injured party and also such knowledge as he himself availed might the exercise of ordi If it prudence. there were nary appears facts and the time circumstances at present false representations the injured sufficient to his put guard were made party he truth, neglected cast suspicion or to not after- thus will warning given, avail himself for the reason that his own complain, be heard wards оne not injury. conduct contributed his Ordinarily a mere liable for false representations respecting question A law. Ill. (Dillman v. Nadlehoffer, 567.) person of his mental faculties is not possession justified rely *6 he has made when ing upon representations ample oppor to ascertain the truth of the he before tunity representations acts. When is he offered the of knowing opportunity truth of the is representations chargeable knowledge. If he does not avail himself of the means of knowledge open to him to he was deceived he cannot heard say by v. misrepresentations. Dickinson, 521; Ill. (Dickinson 305 Hustad v. It Cerny, id. cases where 354.) only 321 the parties do not have or of knowl means equal knowledge edge of facts relief represented will afford equity on the of fraud and ground Johnson v. misrepresentаtion. Miller, Ill. 276.
The contract was entered into on September 25, 1925, and it was not consummated until fully 7,May 1926. Appellants had over seven months in which to inform them- selves as to the assessed but value, they did not avail them- of selves this insist that under the law opportunity. They had no or right ascertain from the opportunity books bodies assessing just for what the was as- property of this contention cite sessed. section support of 120. (Cahill’s 2128.) statute chapter p. Stat. contention. does not sustain this Under that section it is the of the chief clerk the board of оn assessors, duty request, to deliver to a statement of assessed person property any his name or in which he is interested the valuation placed thereon the assessor or the board of by review. were in this Appellants interested and were en- titled a statеment as its assessed value. The assess- ascertained and could be record public a matter of ment was written contract entered into a The parties appellants. by pro to refund appellants agreed which appellees the taxes for and what difference between rata therefore were protected were, actually knew what They taxes of were concerned. far as the was delivered before deed the tax bill was for 1925 to raise them on They opportunity May 7, 1926. the tax the transaction as to the amount of before question failed to do so. The board but completed, review and of assessors had the change board Ill. Keogh, assessment from year year. v. (People Co. id. 323; 462.) People Bridge Ap St. Louis were knowledge pellants chаrged review had this were not justified relying right, on statement have made with reference might to what the to the taxes be in might any year subsequent in that would not be contract. representation respect Any basis for contract. The rescinding only sufficient cause of had was аs to the taxes for complaint the first which were covered the contract between year, *7 of action parties, against appellees difference in the amount of taxes paid provided in the contract, difference was not sufficient to avoid the contract of sale.
The bill did not state a cause of the demurrer action, and the decree will sustained, be affirmed. properly Per : The foregoing opinion reported by Curiam Commissioner Partlow is as the hereby adopted opinion is entered in accordance court, judgment therewith.
Decree affirmed.