Opinion of the Court.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action of assumpsit, by Margaret Varner against Andrew J. Varner, the declaration containing only the common counts. The defendant pleaded the general issue, and the Statute of Limitations-that the causes of action did not accrue within five years before the commencement of the suit. The plaintiff replied: (1.) That the said several causes of action in the several counts, etc., and each of them, did accrue to the plaintiff within five years before, etc. (2.) That the defendant did, within five years next before the commencement of this suit in this behalf, undertake and promise, in manner and form as she, the said plaintiff, has above thereof complained against him, to-wit: at, etc. (3.) That, heretofore, to-wit: within five years last next preceding the commencement of this suit, he, the said defendant, undertook and faithfully promised that he would pay to the plaintiff each and all of the several sums of money in said declaration mentioned, to-wit: at, etc.

Messrs. BENNETT, KRETZINGER & JOHNSON, for the appellant.

Mr. H. N. KEIGHTLEY, and Mr. F. S. MURPHY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was indebitatus assumpsit, upon the common counts. Pleas: The general issue, and Statute of Limitations. To the latter plea, several replications were filed: First, denying the plea generally. Second, that defendant did, within five years next before the commencement of the suit, undertake and promise, in manner and form as the plaintiff had above thereof complained against him. Lastly, a new promise within five years. Issue was joined upon these replications,

Opinion of the Court.

and the cause tried by a jury, who found the issue in favor of plaintiff, and assessed her damages. The court, overruling defendant's motion for a new trial, gave judgment on the verdiet, and defendant appealed to this court.

The plaintiff declared upon the original cause of action, and when the Statute of Limitations was pleaded, replied, denying the plea generally, and also setting up a new promise. This was correct practice. 1 Chit. Pl. (* p.) 583; Keener v. Crull, 19 Ill. 189.

We have examined the evidence in this case with care. If appellee's testimony, and that on her behalf, both as to the original cause of action and the new promise, were to be considered as unassailed by conflicting evidence, it was clearly sufficient to support the verdict. But when weighed in connection with testimony of the defendant himself and that of the witnesses on his behalf, there is, as it appears to us, upon paper, very great doubt whether the preponderance was really with the plaintiff, and we would have been rather better satisfied with a verdict in favor of defendant. Nevertheless, it is one of that class of cases where we will not interfere with the finding of the jury. It was their province to reconcile the conflicting evidence, and in the performance of that duty they had the opportunity of observing the manner and appearance of the witnesses while giving their testimony, and this, as all experience teaches us, is of the highest importance in determining the degree of credence to which a witness is entitled. We perceive no material error in the record, and must affirm the judgment.

Judgment affirmed.

Mr. JUSTICE CRAIG took no part in the decision of this

cause.

Syllabus.

69 448 142 428

69 448

160 571

69 448

157 470

ELBERT HALL et al.

v.

JOHN C. FULLERTON.

1. FRAUDULENT REPRESENTATIONS-right of rescission for. A person who is induced to part with his property on a fraudulent contract, on discover. ing the fraud, may avoid the contract and claim a return of what has been advanced upon it. He has his election to affirm or disaffirm the contract. But if he would disaffirm it, he must do so at the earliest practicable moment after discovery of the fraud.

2. SAME-rescission not allowed after unreasonable delay. Where lands were exchanged in September, 1859, and one of the parties sought to avoid the contract on the ground of fraudulent representations as to the locality, value, etc., of the land taken by him, and it appeared that he learned of the falsity of the representations within a year after the exchange, and that he never expressed any dissatisfaction or attempted to rescind the contract until the day before filing his bill, which was on January 24th, 1865: Held, that owing to the unreasonable delay in filing his bill, it was properly dismissed.

3.

CHANCERY PRACTICE-when laches must be insisted on in answer. The rule requiring a defendant in a chancery suit to set up and insist on the complainant's laches in filing his bill, is for the purpose of enabling the complainant to amend his bill and account for the delay, so as to admit proof to meet the objection, and will not be extended to a case where the bill attempts to account for the delay, which is not sustained by the proof. In the latter case the objection may be made without first insisting on it in the answer.

4. HOMESTEAD-waiver by abandonment in favor of grantee. Although a deed for premises occupied by the grantor as a homestead, may contain no release of the homestead, yet if he voluntarily abandons the premises and permits his grantee to enter and hold the same, this will amount to a waiver of the right. And such waiver can not be avoided for the fraud of the grantee, after such a delay that a rescission of the contract is denied.

5. CHANCERY-rehearing. An application for a rehearing in a cause in equity, on the ground of newly discovered evidence, is properly denied when such evidence is merely cumulative and not conclusive.

WRIT OF ERROR to the Circuit Court of DeKalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Opinion of the Court.

Mr. B. F. PARKS, for the plaintiffs in error.

Mr. R. L. DIVINE, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court: This was a bill in equity, filed by Elbert Hall and his wife, plaintiffs in error, against John C. Fullerton, defendant in error, for the rescission of a contract for the exchange of lands, on the ground of alleged fraudulent representations made by the defendant. By the contract Hall agreed to exchange the farm on which he resided in De Kalb county, in this State, containing one hundred and sixty-five acres of land, for three hundred and twenty acres of land, owned by Fullerton, situate in Sioux county, Iowa, and $1250 as the difference between the values of the two tracts.

Deeds were accordingly exchanged between the parties, and at the same time Fullerton executed a mortgage to secure the payment of the $1250, which he subsequently paid. Neither party, at the time of the contract, had seen the Iowa land.

The substance of the charge of fraud, as contained in the bill, is, that the Iowa land was not located so near to Sioux City, nor was so valuable, as Fullerton represented it to be; that it was not in a thickly settled part of Iowa, near churches, school houses, and settlements, as Fullerton said it was.

The court below, on hearing, dismissed the bill.

The evidence as to the alleged fraudulent representations. by, Fullerton was conflicting, and we do not find it necessary to consider whether the proof in that respect was sufficient to sustain the allegations of the bill, as we are of opinion the decree of the court below may be sustained, on the ground of the unreasonable delay, after discovery of the alleged fraud, in bringing the bill.

The contract was made, and the deeds exchanged, on the 14th day of September, 1859; the bill was filed January 24, 1865. The substance of the charge of fraud in the case as attempted to be established by the proof, is, in the representa29-69TH ILL.

Opinion of the Court.

tion as to the distance of the Iowa land from Sioux City; the representation, as charged in the bill, being that the land was situated about six miles from Sioux City, and the proof showing it to be some forty or sixty miles distant from that place.

The plaintiff admits that Fullerton told him he had never seen the land. That was a caution to him, not to rely too implicitly upon Fullerton's representations as to the land, and would naturally lead him to resort to early means for their verification. The land being described by the numbers of the congressional subdivision of the public lands, its distance from Sioux City could, at any time, have been readily ascertained by an inspection of a sectional map of Iowa. The presumption is, that if the party affected by any fraudulent transaction, might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.

But in addition to all that, the plaintiff himself testified that he found out, by writing to an agent at Sioux City to pay taxes, some time in September or October, 1860, that the land was not where represented; that instead of being near Sioux City, it was some sixty miles from there.

A person who is induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it. He has his election to affirm or disaffirm the contract. But if he would disaffirm the contract, he must do so at the earliest practicable moment after discovery of the fraud. Masson v. Bovet, 1 Denio, 69.

The falsity of the representation as to the distance of the land from Sioux City was discovered within about a year after the making of the contract; but no dissatisfaction appears to have been expressed, or attempt made to rescind the contract, until the day before the filing of the bill, when the plaintiff tendered a deed of the Iowa land to Fullerton, and demanded a deed of the premises he had conveyed to the latter.