Dillman v. Nadelhoffer , 19 Ill. App. 375 ( 1886 )

Lacey, J".

It is sought by this bill to annul the agreement and recover the money paid, and perpetually enjoin the note last due, the other being in suit, and pleas entered claiming failure of consideration, and is not in controversy in this suit.

The ground of such relief as set up in the bill is, that the execution of the agreement, the payment of the seven thousand dollars in money and the execution of the notes in question, was procured by the fraudulent misrepresentations of the appellee.

The main and chief cause of complaint is that the appellee represented that the patents were genuine and not an infringement of other patents, and that they were new, and that he had been offered the sum of $25,000 in cash for the two patents by other parties, and by implication, at least, that the patents were worth that sum.

Was the first of these representations fraudulent in such a manner as to avoid the contract; and in considering that we must look to the contract to see what was actually sold to the appellant.

It will be observed that the deed of assignment of the letters patent and the assignment of the claim for the one applied for was only a quit claim. It was not a warranty. The only warranty was that appellee held and retained the full and complete absolute title to each of said letters patent; that is all the title that he ever held ; that he had not conveyed or incumbered it. That this warranty has failed is not contended. The agreement then expressly says that the appellee did not warrant the validity of said patents, or that they were not infringements of any other patents now existing, and the said party of the first part shall.not be required to. defend any suits now pending or hereafter to he instituted wherein the validity of the said patents are called in question, etc. So it will be seen that appellant was fully notified that he was buying the patents at his own risk — that he took his chances as to their being infringements and as to their novelty. Whether they were genuine or not was to a great degree a mere question of opinion and as to whether they were infringements or not was the same. The mere representations that the patents were genuine and novel, and not infringements, should be regarded as mere matter of opinion and are not such false representations as would avoid a contract. As to the patents being worthless, depends apparently upon the fact of their being genuine or not. If they are genuine and not infringements, there is no charge in the bill but that they were fully as valuable as claimed by appellee, or worth the amount given. Therefore there could be no failure of consideration under the agreement, there being no warranty of genuineness, unless the contract can be impeached for fraud. It remains now to be considered whether the representation by appellee that he had been offered $25,000 in cash for the patents was such as to avoid the contract on account of fraud. The material effect of such statements would be to induce the belief on the part of appellant that as others prized the patents they must be very valuable, and might induce the belief that they were genuine, as parties would not make such offers unless they so believed. But as to the value of the patents there is no dispute, in the case of their being genuine and not infringements.

That may be laid out of the question, as appellant waived any warranty. Then the other part of the implication, that parties believed that the patents were genuine, would rest on the same foundation as the representations made by the appellee directly; that the patents were genuine and not infringements is a mere matter of opinion of a party not known to have any peculiar knowledge.

It would be the folly of the appellant to use any such implication or to be influenced by such statements. Then we would conclude that such false statement would not be sufficient grounds upon which to declare the contract void. In the case of Noetling v. Charles H. Wright, 72 Ill. 390, it is held, “ that statements made by a vendor of property, as to its value or the price he has been offered for it, or the good qualities of the property,” etc., * * * are not such statements, if proven false, upon which an action for deceit could be maintained * * * such statements are regarded as mere gratis dicta, and as is well said by Kerr in his work on Frauds and Mistakes, page 84, “A man who relies on such affirmations, made by a person whose interest might so readily prompt him to invest the property with exaggerated value, does so at his peril, and must take the consequences of his own imprudence.” But this rule would not apply in case a party should state that he had been offered .an exaggerated price for an article by a third party, and by collusion with that party the third party should falsely state that he had in fact made such offer when he had not in good faith done so. “ By such a conspiracy a source of information to which plaintiff had a right to resort and rely on would be corrupted, and he be prevented from obtaining correct information, so he would be morally and legally defrauded.” Keener v. Harding, 85 Ill. 264. But such is not- the case here. Ho such conspiracy is alleged. As authority bearing on the same doctrine, and sustaining it, see Schramm et al. v. Mary E. O’Conner et al., 98 Ill. 539. We therefore conclude that no such representations were made in this case as would amount in law to fraud. The appellant had been manufacturing the barbed wire under this patent, and was as well acquainted with its value as appellee, and such representations ought not to have deceived him.

Another point in the case that would prevent the appellant from sustaining his bill is, that he should have offered to re-deed the patents to him, which he did not do. It is claimed that the patents are worthless and not genuine; hence this offer need not be made. We think, in good faith, it should be. This is not a suit directly to annul the patents, and notwithstanding they are admitted by the demurrer to be infringements, yet they might have some value to appellee, and they should be returned. They are at least grima facie good, and the appellee might be able to realize, something for them if he had them.

What excuse can there he on the, part of appellant for not making the offer ? If he procures the contract to be annulled, if there can he anything realized out of the patents, appellee, and not appellant, is entitled to it. . Eor these reasons we think the decree should be affirmed.

Decree affirmed.