'A

and it was held under that Code that: claim for damages for a purely personal wrong, while it remains unliquidated and unascertained by a verdict, dies with the person; but the intention of the section of the code above cited seems to be to prevent this result after the claim has been ascertained by a verdiet. In that case the verdict becomes property, which passes to the representatives of the deceased, as a judgment would at common law. It then becomes the duty of the executor or the administrator to defend it for the benefit of the estate.' Wood v. Phillips, 11 Abb. Prac. (N. S.) 1. In the case at bar the claim for damages became liquidated and determined by the verdict. There was no further uncertainty about the claim, and the statute, by its terms, recognizes and preserves the right of entering judgment upon it. This right is a valuable one, and the verdict should be regarded as a property right—as much so as a verdict rendered for violation of a contract, or other causes of action not arising out of tort. The verdict was therefore assignable, by virtue of the terms of the statute."

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SUSTAINING

WITNESS EXAMINATION CREDIT OF IMPEACHED WITNESS.-In Tippett v. State, 39 S. W. Rep. (not yet reported), the Court of Criminal Appeals of Texas, per Judge Henderson, recently decided an interesting question. It held that, where the State, on cross-examination of a material witness for the defendant, elicits, for the purpose of impeachment, evidence that there are indictments or charges pending against him for theft of cattle, the defendant may on re-examination have such witness detail the circumstances under which he was so indicted, so that the explanation may be considered by the jury for the purpose of sustaining his credibility and for removing or attempting to remove the stain upon his character resulting from such impeachment. The court on this point says:

The question of the admissibility of the character of testimony offered by the State to impeach the witness, Ragland, has been heretofore discussed by this court. In some of our States it is held that testimony showing that a witness is under a charge of a criminal offense, is not admissible for the purpose of impeaching him on the ground that, until there is proof of conviction, the witness is protected by the legal presumption of innocence. In Carroll v. State, 32 Tex. Crim. Rep. 431, this character of evidence was

held admissible in this State; and see the question also discussed in Brittain v. State, 32 St. Rep. 758. So we take it, that it is now well settled that the State can introduce this character of testimony for the purpose of impeaching a witness. But the question is now presented, we believe for the first time in this court, whether or not, after the State has in the first instance on cross-examination, adduced this impeaching testimony, it is permissible for the defendant on the re-examination of said witness, to show the groundlessness of the charge contained in the indictment. The reason of the ruling for authorizing this character of testimony to impeach a witness on behalf of the State is well expressed by Campbell, J., in Wilbur v. Flood, 16 Mich. 43, 8 Crim. Law Mag. & Rep. p. 86. He says: "It has always been found necessary to allow witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seem to justify it, in allowing a full inquiry into the history of witnesses, and in many other things tending to illustrate their character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract the whole truth from them on the merits. It has always been held a witness may, on cross-examination, within reasonable limits be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of this power. But within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility and it is certain that proof of punishment in a State prison may be an important fact for that purpose. And it is not very easy to conceive why this knowledge may not be as properly derived from the witness as from any other sources. He must be better acquainted than others with his own history, and is under no tempation to make his own case worse than the truth will warrant. There can be with him no mistake of identity. If there are any extenuating circumstances, no one else can so readily recall them. We think the case comes within the well established rule of cross-examination, and that the few authorities which seem to doubt it have been misunderstood, or else have been based upon a fallacious course of reasoning, which would, in nine cases out of ten, prevent an honest witness from obtaining better credit than an abandoned ruffian." Upon the point now before us we call attention to the expressions used in the latter part of the above quotation, to-wit: "He must be better acquainted than others with his own history; and is under no temptation to make his own case worse than the truth will warrant. If there are any extenuating circumstances no one else can so readily recall them."

Rice on Evidence, Sec. 372, has the following: "Among the stereotyped questions prepounded to a witness, with the view of impairing his credit, is this, 'were you ever arrested and convicted of such a crime?' (naming the crime). In the vast majority of instances the interlocutor has previous knowledge of the facts, and the reply elicited is almost invariably in the affirmative. This naturally creates unfavorable presumptions. This is a matter of no small impor

tance to the criminal bar of this country, to know that relief may be afforded in part at least, from these unfavorable impressions, by eliciting, upon the re-direct examination, testimony from the witness declaratory of his innocence of the crime charged; and this, too, although the record of his conviction be produced." Citing Sims v. Sims, 75 N. Y. 467; and Walcott v. Tifft, 35 N. S. L. R. 93. In our opin ion, it would be exceedingly unfair to authorize the State by this method of cross-examination, to impeach a witness by showing that he was then under a criminal charge or accusation, and not permit the defendant, in order to bolster his witness against such an assault to show by such witness any circumstance or explanation that would go to relieve the witness of the imputation of untruthfulness or want of credit thus cast upon him by the State. We would not be understood as holding that the court would be authorized to enter into an investigation of the merits of this collateral issue; but we do hold, where this method of impeachment of a witness is resorted to on cross-examination, that on the re-examination of the same witness, defendant should be permitted to show such explanatory circumstances, in connection with matter inquired about, as would go to remove the implication of untruthfulness and serve to reinstate the witness. This case is an apt illustration of the fairness of the rule. Here, in order to discredit the witness, the State was permitted to show that he was under indictment for the theft of three head of cattle. This left the witness under a cloud. He should have been permitted to state on his re-examination, that he was a bona fide purchaser of said cattle and had not stolen them. The accusation, with the explanation made by the witness, would then all be before the jury, who, in passing upon his credit, would take all the facts into consideration. If the testimony of the witness was of an unimportant or immaterial character, the refusal of the court to permit this testimony, might not afford a ground for a reversal of the case; but it occurs to us that the testimony of said witness was of a material character. (Court discusses the materiality of witness' testimony and concludes): It strongly tended to corroborate the defendant's witnesses as to the fact that deceased was armed with a pistol at the time of the homicide, and that the defendant knew or believed that he was so armed; and in our opinion, after the testimony of this witness was impeached by the State, the court committed a material error in not allowing the testimony on his re-examination, which would tend to explain this impeaching testimony, and to reinstate his credit with the jury.

BUSINESS

MONOPOLIES-COMBINATION IN RESTRAINT OF PROMISSORY NOTE, The case of Milwaukee Masons & Builders Assn. v. Niezerowski, 70 N. W. Rep. 166, involves an interesting question of monopolies and combinations contrary to public policy. It is held that private by-laws of a masons' and builders' association, the membership in which includes 60 out of 70 or 75 mason contractors in a city, which require the members to pay to the association 6 per cent. on all contracts taken by them, and to submit all bids for work first to the association, and provide that the lowest bidder shall add 6 per

cent. to his bid before it is submitted to the owner or his architect, are contrary to public policy, and void; and that a note given by a building contractor to an association of such contractors, of which he was a member, for a percentage on a contract for building, required to be paid to the association by a pri vate by-law which was contrary to public policy, and void, will not be enforced. The court says on this point:

The question to be determined is whether the benefits and advantages which the defendant was entitled to receive, as a member of the association, in conse quence of conducting its business under and in pur suance of the by-laws already noticed, constitute a lawful consideration for the note. The manifest purpose of the private by-laws was, by means of the combination thus effected, to suppress fair and free com. petition in bidding for building contracts in Milwau kee, and by such combination and method of bidding, upon its face apparently fair and free from objection, but in fact unfair and delusive, to compel owners to pay for the erection of buildings the sum of 6 per cent. in excess of what they would be otherwise obliged to pay for them if fairly let to the lowest bidder, uninfluenced by such combination. It seems to us that the restraint put upon the rights of proprietors by the provisions of these by-laws or rules, as well as the entire scheme thus disclosed, is contrary to public policy, and therefore void. Agreements in restraint of trade are against public policy and void, unless founded upon a valuable consideration, and limited as regards time, space, and the extent of the trade, to what is reasonable under the circumstances of the case. All such arrangements tend to deprive the public of the services of parties in the employments and capacities in which they are most useful, and they tend to expose the public to the evils of monopoly. Richards v. Seating Co., 87 Wis. 512, 58 N. W. Rep. 787, and cases cited. In Cloth Co. v. Lorsont, L. R. 9 Eq. 345, it was said: "All restraints upon trade are bad, as being in violation of public policy, unless they are actually, and not unreasonably, for the protection of parties dealing legally with some subject. matter of contract." The test whether the restraint is reasonable is laid down in Horner v. Graves, 7 Bing. 735, 743, where is is said: "The question is whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either. It can only be oppressive: and, if oppressive, it is, in the eye of the law, unrea sonable." The combination in question is contrary to public policy, and strikes at the interests of those of the public desiring to build, and between whom and the association, or the members thereof, there exist no contract relations; and it is not distinguishable in principle from the case of Hilton v. Eckersley, 6 El. & Bl. 47, 64, 65. While all reasonable stipulations and means to protect labor or trade are laudable, we must hold that the means here sought to be employed are such as the law will not sanction. We must con sider what may be done under such an agreement, and the result which it will necessarily produce. As already pointed out, the operation of this combination, under its private by-laws, is to suppress free and

fair competition in bidding for contracts, and by delusive and deceptive means members of the associa tion are enabled to exact from owners a higher price for buildings than they would otherwise have to pay. In the matter of changes or additional work, all competition by other members of the association is prohibited, unless the amount exceeds the original contract price. And as the membership of the association embraces nearly six-sevenths of the mason builders in Milwaukee, the combination not only tends to suppress competition, but operates most unjustly towards builders not members of the association. The restraint thus imposed on the trade is neither fair nor reasonable. In People v. North River Sugar Refining Co. (Cir. Ct.), 2 Lawy. Rep. Ann. 33, 40 (3 N. Y. Supp. 401, 409), it was said that "all the cases, ancient and modern, agree that a combination, the tendency of which is to prevent general competition, and to control prices, is detrimental to the public, and consequently unlawful;" and many cases are there cited, and in the note, to the same effect. In Hooker v. Vandewater, 4 Denio, 349, it was held that an agreement between the proprietors of five lines of boats, engaged in the business of forwarders on the Erie and Oswego canals, to run for the remainder of the season at certain rates for freight and passage then agreed on, and to divide the net earnings among themselves in certain proportions, was a conspiracy to commit an act injurious to trade, and consequently void. The object expressed in the agreement was the "establishing and maintaining fair and uniform rates of freight, and equalizing the business among themselves, and to avoid all unnecessary expense in doing the same." Of this Jewett, J., observed: "The objeet of the agreement, as expressed in the written con. tract, was plausible enough, but it was impossible to conceal the real intention." He added that "the great, if not the sole, object of the agreement, was to destroy rivalry, and keep up the prices to certain rates fixed by themselves." Stanton v. Allen, 5 Denio, 434, was a very similar case, where it was held the agreement was void at common law, as contravening public policy, and injurious to the interest of the State. Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 186; Salt Co. v. Guthrie, 35 Ohio St. 672; Craft v. McConoughy, 79 Ill. 346; More v. Bennett (Ill. Sup.), 29 N. E. Rep. 888; Oil Co. v. Adoue (Tex. Sup.), 19 S. W. Rep. 274, 278, 279; Anderson v. Jett (Ky.), 12 S. W. Rep. 670. These are all cases quite in point, and show that the restraint on trade produced by this combination is unreasonable, and without legal sanction. The true test of the illegality of a combination to restrain business or trade is its effect upon the public interests; that is to say, of those outside of the combination. Nester v. Brewing Co., 161 Pa. St. 473, 29 Atl. Rep. 102. In Atcheson v. Mallon, 43 N. Y. 147, 149, it was said that: "The true inquiry, is, is it the natural tendency of such an agreement to injuriously influence the public interests? The rule is that agree. ments which, in their necessary operation upon the setion of the parties to them, tend to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public, or of third parties, are against the principles of sound public policy, and are void." If, from the plaintiff's own showing or other. wise, a cause of action appears to arise ex turpi causa, the court will not allow a recovery. The maxim is "Ez dolo malo actio non oritur." The defendant may properly invoke the maxim that in such cases "potior est conditio defendentis." The court refused to interfere in such cases, not on account of the defendant, but in the larger interests of the public.

語

Nestor v. Brewing Co., supra; Hooker v. Vandewater, 4 Denio, 352. In Wight v. Rindskopf, 43 Wis. 348, it was said by Ryan, C. J., that: "Courts owe it to public justice, and to their own integrity, to refuse to become parties to contracts essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always to turn a suitor upon such a contract out of court, whenever and however the contract is made to appear." No court will enforce such an agreement as the one before us, or compel the defendant to go any further in performing on his part by enforcing payment of the note. The verdict for the defendant was rightly directed.

SETTING ASIDE CONVEYANCES OF REAL ESTATE ON ACCOUNT OF FALSE AND FRAUDULENT REPRESENTATIONS BY THE VENDEE OR HIS AGENT.

Fraud Vitiates Deeds.-When a party has been induced by fraud to convey away his land, such deed may be set aside.1 When statements designedly false have been made by one party to a contract to the other, who has accepted them and acted upon them as true, to his injury, relief will be afforded in a court of equity against its enforcement upon the ground of fraud, and a rescission will be decreed. The same consequences follow when the party makes such false statements in ignorance as to their truth or falsity, since the other party has been injured thereby.3 Such representations must be material and must have been acted upon by the other party to his injury. A party was induced to sell some land by false representations that a foundry and machine shop would be immediately erected on the land conveyed, which would enhance the remaining property of the vendor. The obtaining thereby of property, which would not otherwise have been parted with, was considered a sufficient injury to justify the court in setting aside the deed, although the full value of the land was tendered."

1 Dean v. Brooks, 88 Wis. 667.

2 Battelle v. Cushing, 21 D. C. 59; Wilson v. Carpenter, 91 Va. 183; Ashley v. Schmalinski, 46 La. Ann.

499.

3 Battelle v. Cushing, supra; Parsons v. McKinley, 56 Minn. 464; Borders v. Kattleman, 142 Ill. 96.

4 Battelle v. Cushing, supra; Lewis v. Brookdale L. Co., 124 Mo. 672; Hewlett v. Saratoga, etc. Co., 84 Hun, 248; De Frees v. Carr, 8 Utah, 488; Schubart v. Chicago, etc. Co., 41 Ill. App. 181; Smith v. Richards, 13 Pet. 26; Slaughter v. Gerson, 13 Wall. 879. 5 Williams v. Kerr, 152 Pa. St. 560.

When Misrepresentations Impair Contracts.-Contracts have often been set aside, because one party has concealed from the other certain facts, which would probably have prevented its consummation. Where a party obtained a conveyance of land for a stock of goods which he owned in another State, but failed to state that he had not paid for them and by contract could not move them until such payment was made, the deed was set aside. But it is only when the party is in good faith bound to make the disclosure, that concealment becomes equivalent to a false representation. A party in possession of seventytwo acres of public land offered to buy seventytwo acres of such land at the price fixed per acre by the board in charge of such land, giving in his written proposition the courses, distances, and monuments, describing the tract, but in reality 152 acres of land were included in those boundaries. The deed was made, and relief therefrom was refused, because the board had complete maps of the land and should have informed itself as to the amount of land included in those boundaries. There is no obligation on the intending purchaser to inform the owner of the land of the proposed construction of a railroad near the land nor of his efforts to induce its building.10 A party about to purchase an oil-lease is not bound to disclose facts as to the production of oil on a neighboring leasehold, which he holds. Unless exceptional circumstances create a duty to speak, it is the right of every one to keep his business to himself.11 When the contract has been induced on the faith of representations, any one of which is false, the whole contract is to be considered as having been obtained fraudulently, for who can say that the untrue statement may not have been precisely that which turned the scale in the mind of the party to whom it was addressed.12 If such representation might have induced the making of the contract, it will be inferred that it did so.18 Fraud, however, cannot be predicated upon representations unless they refer

9

to existing facts; it cannot arise from promises to do something in the future. Mere expressions of opinion are immaterial.15 Where the party does not rely on the representations, but on his own judgment and information, he is not entitled to any relief.1€ Ordinarily, where the means of knowledge are at hand and equally available to both parties to a contract, the courts will not assist that party, who fails to use such means and trusts the representations of one interested in misleading him.17 In the absence of any misleading word or act by the opposite party, it is the duty of each party to satisfy himself as to the matters involved before the contract is made.18 The law only requires a party to act with prudence, and he may rely on positive representations of fact made by the other party to the contract, even though he possesses means of discovering their falsity.19 The rule of caveat emptor in pri vate sales applies only in the absence of fraud.20 When false representations have been made, it does not lie in the mouth of the defendant to say that plaintiff was negligent in relying on them, or was advised to consult counsel, or had facts brought to his knowledge which ought to have put a rea sonably prudent man on inquiry: he must stand or fall on the truth and good faith of the representations that led to the contract." A party was induced to convey his lands for other land on the false representations of the vendor's agents, that there was a large demand for buildings on the ground he was buying, that a railroad was about to move its shops to the vicinity, and that a syndicate had been formed to buy this land and a certain large sum had been offered for it.

14 Balue v. Taylor, 136 Ind. 368; Day v. Fort Scott, etc. Co., 153 Ill. 293.

15 Johanson v. Stephanson, 154 U. S. 625; Day v. Fort Scott, etc. Co., 53 Ill. App. 165; Bradfield v. Elyton L. Co., 93 Ala. 527; Smith v. Richards, 13 Pet.

26.

16 Calhoun v. Quinn (Tex. Civ. App. Dec. 1892), 21 S. W. Rep. 705.

17 Short v. Pierce (Utah, Feb. 1895), 39 Pac. Rep. 474; Lake v. Tyree, 90 Va. 719; Board of Comrs. v. Younger, 29 Cal. 172; Slaughter v. Gerson, 13 Wall. 379; Lewis v. Brookdale L. Co., 124 Mo. 672.

18 Battelle v. Cushing, 21 D. C. 59.

19 Battelle v. Cushing, supra; Wilson v. Carpenter,