C. Niblack, receiver. From a judgment of the Appellate Court (193 Ill. App. 636), affirming a judgment for the plaintiff, defendant brings error. Reversed and remanded. H. M. Steely and Charles Troup, both of Danville (Mastin & Sherlock, of Chicago, of counsel), for plaintiff in error. L. A. Cranston and Thomas A. Graham, both of Danville, for defendant in error. the rock down. Moody testified that he told them to watch it. Arkley and Moody continued to work under the rock, loading coal, for an hour or more afterward, when a rock, on which the loose rock in the roof rested, fell and killed Arkley. Moody testified that they needed props six feet long to support the rock and they had none of the proper length, although there were some seven-foot props near; that on quitting work the day before he ordered some six-foot props in the usual way, by filling the ticket in a box in the office, but no props out a timber ticket for them and depositing DUNN, J. John R. Arkley, while in the employ of the plaintiff in error as a coal miner, was killed at his work in the mine by the fall of a rock on May 24, 1912. The plaintiff in error having elected not to pro-mand. There was a dispute in the evidence vide and pay compensation as provided in the Workmen's Compensation Act, the administratrix of Arkley's estate brought an action on the case for damages caused by his death, in the circuit court of Vermilion county, and recovered a judgment for $5,000, which the Appellate Court for the Third Dis'trict affirmed. On petition of plaintiff in error a writ of certiorari was awarded, and the record has been brought before us for review. The errors argued by the plaintiff in error are that the court erred in refusing to direct a verdict for the defendant, in giving instructions for the plaintiff, and in refusing instructions asked by the defendant. The declaration consisted of four counts, two of which were based upon the willful failure of the plaintiff in error to furnish props when demanded, and two on the charge that the mine examiner willfully neglected to report a dangerous condition existing at the deceased's working place but reported it safe, while in fact the roof was in a dangerous condition at the time of the examination of the mine, which the mine examiner should have discovered and reported. [1] The deceased and his buddy, Henry Moody, were working in one of the entries of the mine at the time the deceased was killed. They had been working in the same place the day before, which was May 23d, and in the morning of that day, before the men went to work, the mine examiner had found a loose rock and had marked it as dangerous. The deceased and his buddy were told of this condition by the assistant mine manager and instructed to remedy it. They removed part of the rock, including the part bearing the examiner's mark, and went on with their work. Early in the morning of the 24th the mine examiner again examined the roof at this place, but regarded it as safe and made no danger mark. When the deceased and Moody went to work on the morning of the 24th, they tested the roof and found a loose rock there, but went to work loading coal. About 10:30 the assistant mine manager visited their room, was told about the loose rock, and sounded the roof. He told them it was unsafe, put a cross-mark on it, and testified that he told them to take were delivered in accordance with this de as to whether any six-foot props were ordered and as to whether or not there were any such props at the place of the accident. The evidence was such as required its submission to the jury to determine whether any props of the required dimensions were demanded and not delivered, whether a dangerination was made on the morning of May ous condition existed at the time the exam 24th, and whether the failure to furnish the props as demanded and the failure to mark of the deceased's injury. The motion to dithe dangerous place were proximate causes rect a verdict was properly denied. [2, 3] Three instructions given for the stantially in the language of the statute in plaintiff are complained of. Two are subregard to the duty of the mine owner to furnish props and of the miner to secure his place for his own safety and in regard to the duties of the mine examiner. They were applicable to the case, and it was not erroneous to give them. The other instruction informed the jury that the fact that the deceased, after discovering that the rock in the roof was loose and pressing on another rock in the side of his working place, and that neither of the rocks had any support under it, continued to work under and around such rocks until the time of the accident, would not alone bar recovery, if the jury believed, from a preponderance of the evidence, that the deceased came to his death as alleged in the second count, which charges a willful failure to deliver props as demanded. This instruction amounted to telling the jury that contributory negligence by the deceased in working about the rocks after knowledge of the danger would not bar a recovery, and this is in accordance with the law. The instruction does not purport to inform the jury as to what it was necessary to prove to entitle the plaintiff to recover, and is not subject to the criticism which is made upon it. [4] Plaintiff in error asked the following instruction, which the court refused to give: "The court instructs the jury that although you may believe, from the evidence, that deceased and his buddy did not have timbers of the right length to prop and support the loose rock yet if you further believe, from the evidence, in the roof of the entry marked by McFadden, that deceased and his buddy did not intend to attempt to prop or support said rock or the side rock until after they had shoveled up and loaded the loose coal on the floor under said rocks, shot down the day before, and that it was while so doing, and before the time had arrived when they intended to attempt to prop or support the rock, or take it down, and that the failure to furnish timbers of the proper length, if there was any such failure, was not the proximate cause of the accident to and death of deceased, then no recovery can be had in this case because of or on account of a failure to furnish and deliver six-foot props, and on this issue your verdict should be for the defendant, and you should find him not guilty." It is argued that the testimony of Moody shows that he and Arkley did not intend to prop the rock until they had loaded the coal which was on the floor. The demand for props Moody testified was made on the evening of the day before the accident, and they should have been delivered the next morning. They were not there when Arkley and Moody arrived and they went to loading coal. Moody testified that they did not have anything to prop the rock with, except sevenfoot props, which were too long; that they did intend to prop the rock, and did try some of the timbers there, but found them too long. This instruction would have authorized the jury to base their verdict upon what they believed the deceased and his buddy would have done with the props if they had been delivered, although the demand and willful failure to deliver the props had been proved. The instruction was properly refused. [5] Instructions 18 and 20 are both based upon the hypothesis that the side rock which fell was solid at the time of the examination and became loose after the deceased went to work. They ignore the dangerous condition arising from the pressure of the loose rock in the roof resting upon the side rock. Even though the side rock was solid, the pressure of the loose rock resting upon it made a dangerous condition, which could not be disregarded. proof so shows) you should find in favor of the defendant as to the third and fourth counts of the declaration." We said in Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30, 104 N. E. 200: "The conditions under which a miner may work at a dangerous place at his own risk are where the owner has complied with the law by having the mine examined, the dangerous place has been marked by the mine examiner, and the miner is sent to that place, by the direction of the mine manager, to make safe the particular dangerous conditions there existing. Whether the failure of the mine examiner to mark the place was the proximate cause of the injury was a question of fact for the jury. The plaintiff had a right to rely upon the performance of the mine examiner's duty, and the absence of a mark indicated the opinion of the mine examiner that the clod was not dangerous. The plaintiff cannot be held guilty of contributory negligence in working under the clod. Mertens v. Southern Coal Co., 235 Ill. 540 [85 N. E. 743]. If it had been marked dangerous, he would probably not have given up the effort to get it down and gone under it to work, and would not have been hurt." Here Arkley was not guilty of contributory negligence in working under the rock, since it had not been marked dangerous. If the mine manager, however, who represented the plaintiff in error and had a right to control Arkley in his work, afterward told him that the rock was dangerous and ordered him to remove it, Arkley no longer had a right to rely upon the opinion of the mine examiner. If the plaintiff in error had failed to mark a dangerous place, the failure was not beyond his power to correct. It was corrected, if the dangerous condition was made known to the miner and he was told to make the place safe. This was what would have happened if the dangerous condition had been reported by the examiner. Arkley's and Moody's entrance checks would have been taken into the possession of the mine examiner and given to the mine manager, and Arkley and Moody would have been informed by the mine manager, before entering the mine, of the dangerous condition and required to make it safe. This was not done; but if the mine manager, on discov [6] Instruction 22 was based upon a supposed custom for the assistant mine manager, McFadden, upon visiting the working places of the miners, to take orders for props, andering the dangerous condition, then informed it was properly refused because there was no evidence of such custom. [7, 8] Instruction 21, which was refused, should have been given. It was as follows: Arkley and Moody and directed them to make the place safe, the situation then was the same as if the owner had complied with the law by having the mine examined, the dangerous place had been marked by the mine examiner, and the miner had been sent to that place, by the direction of the mine manager, to make safe the particular dangerous conditions there existing. It was error to refuse this instruction. "The court instructs the jury that if you believe, from the evidence in this case, that the defendant's assistant mine manager entered John Arkley's working place at or about 10 o'clock on the morning of the day of the accident in question and found a loose rock in the roof of the room and placed a conspicuous mark on it and told Arkley to take down or prop up such loose rock, and that such loose rock extended over and rested partly upon the rock which afterwards fell upon Arkley, and that Arkley failed to take down or prop up the rock so marked by the assistant mine manager, and afterward trial. the loose rock caused the rock which fell upon Arkley to fall, and that the latter rock became loose and fell solely because the rock marked by the assistant mine manager had rested part The judgments of the Appellate Court and the circuit court are reversed, and the cause is remanded to the circuit court for a new Reversed and remanded. Subsequently, on petition for rehearing, ly upon it, then in such state of proof (if the the following additional opinion was filed: tort. [Ed. Note. For other cases, see Assumpsit, Action of, Cent. Dig. $$ 81-99; Dec. Dig. 19.] 5. APPEAL AND ERROR 1094 (2)-REVIEWVERDICTS. A finding of fact by the jury approved by the Appellate Court is conclusive on error to the Supreme Court. PER CURIAM. [9] In a petition for re-not necessary to allege, in terms, a waiver of the hearing the defendant in error insists that the evidence did not justify the giving of instruction No. 21, and that so far as such instruction was proper in the case it was covered by another given at the request of the plaintiff in error. No such argument was made in the brief of the defendant in error, but the only answer made to the argument of the plaintiff in error was that the instruction did not state a correct rule of law. The question was decided upon a consideration of all the arguments presented by either party. On a petition for rehearing new points which were not presented in the argument of the cause will not be considered. The petition for rehearing is therefore denied. Petition denied. (272 III. 377) ARNOLD V. DODSON. (No. 10278.) (Supreme Court of Illinois. Feb. 16, 1916. Rehearing Denied April 6, 1916.) 1. ACTION 28-COURTS 169(1)—ACTIONS -WAIVER OF TORT. An action of assumpsit will lie for money had and received for the use of plaintiff whenever, by means of a contract relation, defendant has obtained money which in justice he ought to refund, and, though the money be obtained through fraud, plaintiff may waive the fraud and sue on the contract; therefore, where defendant, after selling to plaintiff, by misrepresentations, corporate stock, induced her to loan money to a corporation and informing her he had collected the loan, induced her to invest the proceeds in such corporate stock, plaintiff may, as to such transactions, waive the tort and sue on the contract, defendant acting as principal; hence, though the amounts involved exceeded $1,000, the municipal court of Chicago had jurisdiction. [Ed. Note.-For other cases, see Action, Cent. Dig. $204; Dec. Dig. 28; Courts, Cent. Dig. 413; Dec. Dig. 169(1).] 2. ELECTION OF REMEDIES 7(2) CONSTITUTES. WHAT Where by misrepresentations defendant sold corporate stock to plaintiff, plaintiff's demand for return of the purchase price was an election to enforce the promise implied by law. [Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. 7(2). 3. ASSUMPSIT, ACTION OF 19-COURTS [Ed. Note.-For other cases, see Assumpsit, 4. ASSUMPSIT, ACTION OF 19 DECLARATION. ACTIONS In assumpsit for money which defendant obtained through fraud and misrepresentation in a contract relation, the declaration should allege the facts constituting a tort, but it is [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4324, 4344-4347; Dec. Dig. 1094(2).] 6. APPEAL AND ERROR 525(1), 664(2)—CONFLICT IN RECORD BILL OF EXCEPTIONS EFFECT. -- - Instructions become part of record only when preserved by bill of exceptions, which is the method of preserving occurrences during a jury trial; therefore the bill of exceptions showing that objection to instructions was properly and seasonably made will prevail over any recital of record made by the clerk of the court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2376, 2857; Dec. Dig. 525(1), 664(2).] 9. TENDER 12(1) — APPLICABILITY-RIGHT TO MAKE. In assumpsit to recover moneys invested in corporate stock, on defendant's misrepresentations, defendant tendered plaintiff a note of another corporation, which he had represented he collected, and the proceeds of which he was directed to invest in stock. It appeared that defendant obtained a commission for securing a loan, and that plaintiff was also given a commission. Held that, under the circumstances, the refusal of the tender, where defendant was unable to produce the motor trucks which were pledged as collateral, but offered only a bill of sale, of the trucks, was not error; defendant being sued for the moneys which he falsely repre sented he collected. Denial by the Appellate Court of a motion for a rule against plaintiff and her attorneys to show cause why they should not be adjudged in Contempt of court, and for an order requiring them to dismiss proceedings cannot be reviewed in the Supreme Court, where the moving affidavits were not in the abstract. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2583; Dec. Dig. 582(2).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Error to Appellate Court, First District, | expended in enlarging its plant to take care on Appeal from Municipal Court of Chicago; John D. Turnbaugh, Judge. of its increasing business, and that English capitalists had offered $1,500.000 for a right Action by Mary M. Arnold against William to manufacture the machines in foreign counE. Dodson. A judgment for plaintiff being tries. The plaintiff alleged that each and affirmed by the Appellate Court (193 Ill. App. all of the statements so made were false and 62) defendant brings certiorari. Affirmed. known by the defendant to be false when Charles H. Aldrich, of Chicago, for plain-made, and that she believed the statement to tiff in error. David K. Tone, of Chicago, for be true and relied upon them, and was theredefendant in error. CARTWRIGHT, J. The Appellate Court for the First District affirmed a judgment for $8,856.54 recovered in the municipal court of Chicago by the defendant in error, Mary M. Arnold, against the plaintiff in error, William E. Dodson, and a writ of certiorari was granted to bring the record here for a review of the judgment of the Appellate Court. The principal question is whether the municipal court had jurisdiction of the cause of action. The amount claimed exceeded $1,000, and, if the claim was in tort, the court had no jurisdiction. If the claim stated by the plaintiff and proved at the trial was in assumpsit, the court had jurisdiction. by induced to purchase the stock. The amended complaint then alleged that on March 1, 1912, the plaintiff was induced to turn over to the defendant $5,000 as a loan to the Universal Motor Company on a note due in 60 days, secured by 10,000 shares of the capital stock of the corporation and a bill of sale of two motor trucks; that he induced her to loan the money by falsely and fraudulently stating that the stock of the corporation had been nearly all subscribed for by responsible people; that the corporation had a factory where it was manufacturing motor trucks, and that it was a responsible concern, all of which statements were false and known by the defendant to be false when made by him and relied on by the plaintiff; that on or about August 28, 1912. the defendant stated to the plaintiff that he had collected the $5,000 from the Universal Motor Company, and the plaintiff then purchased from the defendant $5,000 in par value of the stock of the United Motor Equipment Company; that she was induced to purchase that stock by false and fraudulent statements of the defendant that the stock of the corporation was all owned by his own family and been paid into the corporation on account one or two intimate friends; that $50,000 had of the stock, which was all the money the corporation needed to exploit its invention; that the company would not sell any more stock to any one; that a man had offered to pay the defendant $50,000 for $50,000 in par value of the stock and the defendant had refused to sell it; that the company was the owner of a patented invention of an au The amended statement of claim alleged that on or about November 6, 1911, the plaintiff purchased from the defendant 350 shares of the capital stock of the National Machine Recorder Company, for which she paid him $3,150; that on or about July 18, 1912, the plaintiff purchased 300 additional shares of the stock of the corporation for the sum of $1,600, which she paid to the defendant; that the defendant induced her to purchase the stock by falsely and fraudulently represent ing that the machines manufactured by the National Machine Recorder Company were beyond the experimental stage and had been perfected; that the corporation for about a year had been manufacturing and selling nine machines a day at $900 each; that the International Harvester Company had purchased a number of the machines, and was well satisfied with them; that the corpora-tomobile starter, and owned a factory on the tion was then earning large profits and dividends on the stock by selling its machines; that he had invested $500,000 of his own money in the stock-practically everything he had; that, in his opinion, the company would make a dividend of 125 per cent. a year on its entire capital stock, based upon what the company had been doing up to that time; that before the second purchase of the 300 shares the defendant represented to her that the dividends and money that the corporation had made prior thereto in the sale of its machines were being used in making repairs and installing the unit system; that the corporation had a lot of money in the bank, and it was making money, and in a short time dividends would be paid on the stock; that at the time the second purchase was made the defendant represented that the money the corporation had made was being north side, and was ready to manufacture automobile starters, and the plaintiff would make a profit of at least 30 per cent. a month on the $5,000; that he offered to give her the stock in consideration of the surrender and payment of the $5,000 promissory note of the Universal Motor Company; and that the plaintiff, relying upon said statements, took the 500 shares of stock in payment of the promissory note. It was then alleged that on or about August 3, 1913, the plaintiff discovered that all of the foregoing statements by which she was induced to purchase from the defendant stock in the National Machine Recorder Company and in the United Motor Equipment Company were false, and that she then tendered to the defendant all the foregoing shares of stock and demanded a return to her of the sums of money paid him for the same. [1-4] An action of assumpsit will lie for, payment for the stock of the United Motor money had and received for the use of the Equipment Company. The allegation, thereplaintiff wherever, by means of a contract fore, was that the defendant had received relation, the defendant has obtained posses- $5,000 of the plaintiff's money for which he sion of money which in justice he ought to had given her worthless stock, and it was refund. If there is privity existing between for that $5,000 that she sued. By the comthe parties in relation to the money sought mon-law system of pleading, if a suit in asto be recovered, and the money has been re- sumpsit was not on an instrument containceived by the defendant by means of fraud or ing a promise to pay, the declaration was refraudulent practices, the defrauded person quired to allege the promise which the law may rescind the contract, return the consider- implied, but a failure could only be reached ation, waive the tort, and sue in assumpsit. by special demurrer. Massachusetts Mutual Citizens' Gaslight & Heating Co. v. Granger | Life Ins. Co. v. Kellogg, 82 Ill. 614. In the & Co., 118 Ill. 266, 8 N. E. 770; Drennan v. municipal court it was only necessary to Bunn, 124 Ill. 175, 16 N. E. 100, 7 Am. St. state facts which would sustain the cause of Rep. 354; May v. Disconto Gesellschaft, 211 | action, without alleging the fiction of a promIll. 310, 71 N. E. 1001; 2 R. C. L. 759. The ise implied by law. The claim stated was not statement alleged purchases of worthless for tort, but in assumpsit, and the municipal stocks induced by frauds of the defendant, court had jurisdiction of that form of action. the receipt of money by him for the stocks, a disaffirmance of the transactions, and a demand for the money. Proof of the frauds and disaffirmance would make the defendant liable to compensate the plaintiff in damages for the wrongs or create a promise implied by law to refund the money. The alleged demand for the money was an election to enforce the promise inferred by law. A plaintiff cannot waive a tort and declare in assumpsit for money had and received unless money has actually been received by the defendant, but under that rule there can be no doubt that, so far as the first purchase of 350 shares for which she paid the defendant $3,150 is concerned, the amended statement of claim set forth a good cause of action in assumpsit. That is also true of the statement concerning the second purchase of 300 shares, for which the plaintiff alleged that she paid the defendant $1,600. Where the action is assumpsit, it is proper to allege the 'facts which constitute a tort, and not necessary to allege in terms, a waiver of the tort. 5 Corpus Juris, 1399. As to the last purchase the statement recited that the defendant induced the plaintiff, by means of false and fraudulent representations, to make a loan of $5,000 to a corporation, and, if there had been resulting damage, the action for such damage would have been in tort, be cause it appeared that the defendant acted as an agent and personally received nothing. But the plaintiff was not seeking to recover any loss by that loan. She alleged that the defendant told her he had collected the note, and, if so, the money received by him was money belonging to her in his hands. The defendant having informed the plaintiff that the note had been paid to him, the corporation was entitled to the note with the collateral and the bill of sale of the trucks. When the plaintiff gave the defendant the note and collateral and bill of sale, she did no more than she was required to do upon his statement that the note had been paid to him. The defendant then retained the $5,000 in his hands belonging to the plaintiff in [5] The cause of action proved at the trial was of the same nature. The only denial made by the defendant in his affidavit of merits was that the plaintiff made the purchase of the stock relying upon the representations set out in the amended statement, or that he made or authorized others to make the representations or any of them. He alleged that, when the plaintiff applied to purchase the stock, he told her that he did not wish to deal with a woman, but she represented herself as a business woman of large experience, and was told to make her own investigations regarding the machine recorder stock, which she did, and that only after such investigation did she purchase the stock. At the trial the defense relied upon was that the defendant did not make the false representations. If made, they were false, since the corporations had no property of any particular value and derived no income from their business. The only property the machine recorder corporation ever had was a patent and some experimental machines, and it had never sold any. The stocks were worthless, and were manipulated by the defendant, his brother, and his agent for the purpose of selling the stocks. The evidence for the plaintiff was that the defendant made the representations about the number of machines sold at $900 each, and that it only cost $150 to make one, when in fact, the corporation had never sold any. It appeared on the trial that the 300 shares of stock were purchased from T. J. Ament, and the defendant acted only as agent. That claim was rejected by the jury, and the verdict was for the amounts which the defendant himself received in his own right for the stock purchased from him. sentations, if made, were false, and that they were made is settled by the affirmance of the judgment by the Appellate Court. The recovery was in assumpsit and not for a tort. The repre [6] Errors were assigned in the Appellate Court on the giving of instructions at the request of plaintiff, and they have been assigned in this court. The Appellate Court |