Linington v. Strong

Citations

• 111 Ill. 152

Syllabus

<p>!• Bes judicata — judgment of Appellate Court reversing and remanding. A decision or holding by the Appellate Court in reversing a judgment and remanding,the cause, not being a final judgment, from which either party appeal, can not be regarded as res judicata on a second appeal. One party can not be concluded by the judgment and the other not.</p> <p>2. Bbaud — false representations. At law an intent to deceive must exist to constitute actual fraud. . Bepresentations, though untrue, if not made with a knowledge of their falsity, can not be said to constitute fraud, when the contracting parties occupy no fiduciary relation or position of confidence or trust toward each other.</p> <p>3. Same — negligence in signing a contract without reading it. In an action upon a written contract, which the defendant sought to avoid on the ground of an alleged fraudulent statement that it was a copy of an original draft except in a matter which did not concern him, the court, at the instance of the plaintiff, instructed the jury that a party executing a written contract should exercise reasonable care and prudence to learn its nature and contents before signing it, by reading the same, if capable of reading, and that he would not be excused for his want of care and prudence in signing without so reading the same, unless induced to do so by willfully false statements of the party procuring his signature: Held, that the use of the word “willfully,” in the connection it was employed, did not render the instruction erroneous.</p> <p>4. What is negligence in signing a contract without reading the same, is not a question of law, but one of fact for the jury, to be judged of from the peculiar facts and circumstances of each case. In such a case it is not proper to select certain of the facts, and tell the jury in an instruction thatthey afford no evidence of negligence or a want of proper and reasonable care.</p> <p>5. Contract — ■royalty on a specified amount of product — evidence as