Cooper, by Next Friend, v. The Lake Erie and Western R. R. Co.

essary to leave some cars on the side track, and the conductor and brakeman directed appellant to go upon a box car and set the brake thereon when the car had run the proper distance on the side track. This he did, when, without warning to him, the conductor and brakeman, employes of appellee, carelessly and recklessly ran another car against the car on which he was standing, with such force as to throw him off the top of said car and under the other car, thus injuring him severely, without any fault on his part, but wholly by the fault, want of ordinary care, and gross negligence of said employes of appellee.

It is further alleged that appellant was ignorant of the danger of the service in which he engaged, as said conductor and brakeman well knew, but that they did not inform or caution him in any manner or put him on his guard against accident, although such services were very dangerous, as they at the time well knew. Demanding damages, etc.

To this complaint the court sustained a demurrer.

Appellant's learned counsel have given us no sufficient reason to show why this ruling should be held incorrect. While the conductor and brakeman were in charge of the train, it does not appear that they had any authority to employ assistance in its management. No emergency is shown for the employment of appellant. Neither was appellant a passenger; for, even if he had a right to ride upon a freight train, it does not appear that he paid or offered to pay his fare. No custom, rule or regulation of the appellee company is shown by which appellant might pay his way by working on the train, assisting the brakeman or other employe. There is no theory suggested by counsel, and the court can see none, according to which the complaint might be held good. At most, the appellant was upon the train by the sufferance of the

Balue v. Taylor et al.

conductor and brakeman, who were themselves without authority to so receive him. Any dangers to which he thus became exposed were wholly at his own risk. The company could become liable only for willful injury to him.

The judgment is affirmed.

DAILEY, J., took no part in the decision of this case. Filed Jan. 30, 1894.

No. 16,539.

BALUE v. TAYLOR ET AL.

PLEADING.-Complaint.-Theory of.-Trial.-Judgment.-A complaint must proceed upon some definite theory, to be determined from the whole pleading, and the cause tried upon that theory, and such a judgment rendered as the theory adopted warrants.

SAME. Complaint, Sufficiency of.-Damages.-Breach of Contract.-Tort.-Inducement.-Where a complaint, in an action for damages for breach of contract, contains allegations charging the defendant with a tort, such allegations do not render the complaint bad and insufficient, where they may be fairly treated as matter by way of inducement to the gravamen of the action. CONTRACT.-Rescission of.-Re-Tender of Consideration.-Recovery.— Estoppel.-Where a party to a contract seeks to avoid it, or rescind it, on the ground of fraud, he must, before he can recover, tender back to the other party whatever of value he received in consideration for the property he seeks to recover by the rescission; and if, upon the discovery of the fraud, he fails to tender, or offer to return, he thereby affirms the contract, and can not afterwards be heard to complain.

SAME. - Representations. — Fraud. — Action. — Representations upon which an action of fraud can be predicated, must be of alleged existing facts and not upon promises to be performed in the future. SAME.-Fraud.- When Damages the Only Remedy.-Rescission.-Action. -Where the parties to an executed contract can not be placed in statu quo, on rescission of the contract for fraud, owing to a sale and transfer of the property, the only effectual redress for the aggrieved party is an action for damages.

Balue v. Taylor et al.

DEED.-Escrow.-Obtaining Custody Before Condition Performed.—Conveyance. Title.-Estoppel.-Where the grantees of a deed in escrow obtain custody thereof before the condition on their part has been performed, and convey the land to others, the grantees are estopped to avoid it or to say that no title passed to them.

DAMAGES.-Excessive.-Breach of Contract.-Where A. and B. bartered land, A. having land in Illinois worth $7,000, the agreed price, and B. owning land in Kansas worth $5,000, the agreed price, B. agreeing to pay the difference, $2,000, and, on making the exchange, B. only paid $1,484 difference, leaving $516 due, the exchange being made January 9, 1886, and fraud appearing on the part of B. each party agreed to an adjustment of the transaction, by which B. agreed to pay A. $3,000 in cash and $1,500 in real estate, which 'agreement was never performed, a verdict in an action for damages for breach of the contract, for $5,523, rendered April 9, 1891, was not excessive.

VERDICT.-General.-Informal.- When Sufficient.-A general verdict somewhat informal is sufficient where the court could, and it is evident that it did, understand its meaning.

INTERROGATORIES TO JURY.-Irrelevant to Issues.-Refusal to Submit.— Withdrawal.-It is not error for the court to refuse to submit an interrogatory which is irrelevant to the issues, nor to withdraw such interrogatory after it has been submitted.

From the Sullivan Circuit Court.

J. T. Beasley and A. B. Williams, for appellant.

DAILEY, J.-Appellee Robert H. Taylor filed a complaint in the Sullivan Circuit Court, against the appellant, Marion Balue, and co-appellee John C. Chaney, in which he alleged, in substance, the following facts:

That on and prior to the 9th day of January, 1886, he was the owner of a farm in Clark county, Illinois, of the value of $7,000; that at said date said Balue, conspiring to cheat and defraud him out of his farm, and knowing that plaintiff was desirous of selling said land for the purpose of removing to the State of Kansas, proposed to exchange a tract of land in the last named State, for said farm, the Kansas land to be taken and received at the price of $5,000, the defendant, Balue, agreeing to VOL. 136-24

Balue v. Taylor et al.

pay the plaintiff the difference, to wit, $2,000 in cash; that the defendant induced plaintiff to make such exchange by falsely and fraudulently representing to him that the Kansas land was clear and free from incumbrance, good rich soil, well improved, and of the value of $5,000; that the title to said Kansas real estate was in the said Balue, who, with his wife, did, on the 9th day of January, 1886, execute to plaintiff a warranty deed conveying to him said land. Plaintiff says he lived at said farm in Clark county, Illinois, had no knowledge of the title to the Kansas tract, but relied wholly upon the representations of said defendant, made as aforesaid, in relation thereto; that said defendant paid him in cash upon said transaction the sum of $1,484, and he conveyed his said land to the defendant, Balue, at his instance and request, and the tract has since been conveyed to other persons; that, after receiving the deed. from Balue and wife, he sold his personal property and removed to the State of Kansas, when he, for the first time, learned that all the representations so made by the defendant were false and fraudulent; that the Kansas land was not worth to exceed $5,000, and that there was a mortgage incumbrance past due thereon then amounting to $1,500. All of which facts were well known to said defendant before said exchange; that immediately, upon learning the facts aforesaid, plaintiff returned and demanded a rescission of said contract and exchange, and a reconveyance to him of the tract of land conveyed by him. in Illinois. Whereupon the defendants, Balue and Chaney, conspiring and confederating together to further cheat and defraud plaintiff, informed him that they could not rescind said contract of exchange, because of the sale of said land in Illinois, but in lieu thereof they proposed and agreed that to settle and compromise said matter, they would pay plaintiff $3,000 in cash and con

Balue v. Taylor et al.

vey to him fifteen acres of land in Sullivan county, Indiana, worth $1,500, and plaintiff agreed to accept said proposition and reconvey said Kansas land upon the performance of the agreement upon the defendant's part, and did, his wife joining him therein, execute a deed for said Kansas land, to defendant John C. Chaney, at the instance and request of both of said defendants, and deposited it with N. G. Buff, to be delivered to the defendants, and said Buff delivered the same to the defendants, who immediately conveyed said land, and while so doing permitted the mortgage thereon to be transferred and foreclosed, and the premises sold to innocent purchasers; that the title to said fifteen acres, in Sullivan county, was in the said N. G. Buff, who immediately conveyed. the same to some other person; that the fact that the title was in said Buff was concealed from the plaintiff, and defendant Chaney falsely represented to plaintiff that he was the owner of said land, whereas said Buff was the owner, and defendants had contracted to buy said land. and pay said Buff $1,200 therefor, and defendants wholly failing to pay said sum, said Buff sold and conveyed the land, as aforesaid; that plaintiff did not learn, until long afterwards, that the defendant Chaney did not own said tract.

Plaintiff says, that said contract was reduced to writing and signed by the plaintiff and defendant Balue, and was left with the latter for the signature of the defendant Chaney, and was delivered to defendants, and is now in their possession, wherefore he says he can not furnish a copy thereof; that no part of said $3,000 has been paid; that said fifteen acres of land has never been conveyed to him; that he has been put to a great expense, loss and damage by reason of the fraudulent acts of the defendants, to wit, $5,000; that said sum of $3,000 is long past due, and he is entitled to interest thereon from