<p>1. Appellate Court Practice — Effect of Filing an Additional Abstract, — Where the first abstract filed is not sufficient, but a subsequent one filed by the appellant is, and confesses the omissions of the first one, the court will, in this instance, consider the case upon its merits, not holding, however, that the subsequent compliance with the rule relating to abstracts relieves the appellant from its violation in the first instance.</p> <p>2. Waiver — Of a Demurrer by Pleading Over. — A party who fails to abide by his demurrer by joining issue after it is overruled, must be held to have waived his rights under the demurrer.</p> <p>3. Fraud — By Vendee — Presumption.—A party selling property is presumed to know whether the representations he affirmatively makes in respect to it, are true or false; if he knows them to be false it is a positive fraud.</p> <p>4. Same — Untrue Representations of Material Facts.— An untrue representation of a material fact as one’s own knowledge, or recklessly made, not knowing whether it is true or not, is a fraud.</p> <p>5. Same — Expressions of Opinion. — Where an opinion is designedly false, or an advantage is taken of a party in a manner which is clearly oppressive, without negligence on the part of such party, there may be a fraud, although the statement is in the form of an opinion.</p> <p>6. Same — Atóse Statements as to Values. — False statements as to the value of property sold when relied upon by the vendee is a representation of a fact and not an opinion.</p> <p>7. Practice — Where the Defense of a Failure of Consideration May Be Made. — Where a false statement is made, although the party contracting may not have relied wholly upon such statement, but in fact may have relied upon it in part, and would not have contracted without it, the defense of a failure of a consideration may be made.</p>
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1901-09-04
How this case has been cited
Cited by 5 later decisions — most recently December 1981
1 district · 4 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶2I am unable to concur with the majority of the court in affirming the judgment in this case.
¶3At the time the note sued on-was delivered to Collier, and for ten days thereafter, the policy of insurance was not in existence; therefore, what Collier said as to the use of it - as collateral security, could not have been said about any existing fact, but it was either a promise as to what the policy would contain or what its value would be. -To constitute fraud there must have been an assertion of an existing fact, with knowledge by Collier that it was false at the time the assertion was made. Even if Collier made the promise, as claimed by appellee, and knew that it never would be fulfilled and that he never' intended to fulfill it, such matters do not constitute fraud in this State, as the matter of fraudulent promise is not recognized in our jurisprudence. Gage v. Lewis, 68 Ill. 604; Kitson v. Farwell, 132 Ill. 327; Murray v. Smith, 42 Ill. App. 548.
