| Ill. App. Ct. | Feb 14, 1901
delivered the opinion of the court.
It is contended by counsel for appellants that as the narr. declares upon a bond executed by appellants, and as it appears from the bond offered in evidence that it was executed by appellant Sheridan, as agent, therefore there is a variance between the declaration and the proof which is fatal to a recovery. We are of opinion that this contention can not be sustained. The bond purports to have been executed by appellant Sheridan, not by the Standard Brass Works, or Taylor, the proprietor of the concern. The recital in the bond that Sheridan is an agent and that it is for and on behalf of the Standard Brass Works that he executes the bond, does not operate to make it any the less his bond. These recitals must be regarded as descriptive only. They do not make the bond the deed of any principal acting through Sheridan. Neither the Standard Brass Works nor Taylor, its proprietor, are obligated by the deed. Sheridan, who executed it, is the one who purports to bind himself, and he and the other appellant, as surety, are bound. Stobie v. Dills, 62 Ill. 432" date_filed="1872-01-15" court="Ill." case_name="Stobie v. Dills">62 Ill. 432; Powers v. Biggs, 79 Ill. 493" date_filed="1875-09-15" court="Ill." case_name="Powers v. Briggs">79 Ill. 493; Braun v. Hess, 187 Ill. 283" date_filed="1900-10-19" court="Ill." case_name="Braun v. S. F. Hess & Co.">187 Ill. 283; Home L. Assn. v. Witherow, 50 Ill. App. 117" date_filed="1893-02-01" court="Ill. App. Ct." case_name="Home Library Ass'n v. Witherow">50 Ill. App. 117; Rice v. W. F. & E. Co., 64 Ill. App. 603" date_filed="1896-06-11" court="Ill. App. Ct." case_name="Rice v. Western Fuse & Explosives Co.">64 Ill. App. 603.
Therefore there is no variance.
The other question presented is as to the action of the trial court in excluding evidence.
It was sought by appellants to show circumstances from which it might be inferred that the goods were received by the Griswolds fraudulently. The court refused to permit such evidence to be introduced and peremptorily directed a verdict. In this we think the court erred.
In suits where it is sought to show fraud as a ground for rescission of sales, the party seeking to establish the fraud is not to be confined to direct and positive proof. Such evidence is rarely obtainable in that class of cases. It is permitted in such cases to show circumstances which tend to show the fraud. Cooley on Torts (2d Ed.), p. 557; 1 Jones on Evidence, Sec. 12; Reed v. Noxon, 48 Ill. 323" date_filed="1868-09-15" court="Ill." case_name="Reed v. Noxon">48 Ill. 323; Phillips v. Kesterson, 154 Ill. 572" date_filed="1895-01-14" court="Ill." case_name="Phillips v. Kesterson">154 Ill. 572; Hennequin v. Naylor, 24 N.Y. 139" date_filed="1861-12-05" court="NY" case_name="Hennequin v. . Naylor">24 N. Y. 139.
This applies both to the establishing of the fraud of the Superior Pump & Windmill Co. in the purchasing of the goods and the participation in the fraud on the part of the Griswolds in the getting of them from that company. The right of the Standard Brass Works to rescind the contract of sale, carried with it the right to take the goods from the Griswolds if it appeared that they were not innocent purchasers but had taken the goods as a part of a fraudulent scheme. The evidence proffered by Wise and excluded by the court tended to such showing. Therefore the trial court should have admitted, this evidence and should have submitted to the jury the question of whether fraud had been shown on the part of the Superior Pump & Windmill Co. and the Griswolds.
Other questions presented need not be considered by reason of the conclusion reached.
For the error in the exclusion of evidence, the judgment is reversed and the cause is remanded.