Opinion of the Court.

Mr. C. A. ROBERTS and N. W. GREEN, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 21st day of November, 1861, Thomas J. Pickett, the complainant, being the owner of the premises in question, two parcels of land situate in the county of Tazewell, the same were sold at sheriff's sale under an execution against him to two several purchasers and certificates of purchase issued to them.

The time for the redemption of the premises from the sale, as against judgment creditors, would have expired February 21, 1863, about which time the holders of the certificates assigned them to Matthew Moore, the original defendant in this suit, he then being a tenant of the premises under Pickett, and the latter a resident of the State of Kentucky. On the 26th day of February, 1863, the sheriff's deed of the premises was executed to Moore as assignee of the certificates of purchase.

The questions presented by the record are, in what capacity did Moore obtain this title, whether as purchaser for himself, or as the agent of Pickett in redeeming the property for him; and, if in the latter capacity, whether there is sufficient evidence of the fact to charge him under the statute of frauds, which is set up in the answer.

The proofs satisfactorily show that Moore, at the time he took the assignment of the certificates of purchase, was acting as the agent of Pickett in redeeming the land for him, and if so, taking the assignment in his, Moore's own name, as also the subsequent sheriff's deed, constituted him the trustee of Pickett. 1 Story Eq. Jur. § 316; Dennis et al. v. McCagg et al. 32 Ill. 429.

Although twelve months, the time limited for Pickett to redeem from the sale, had expired, he yet, within the fifteen months allowed for judgment creditors to redeem, might have redeemed indirectly, through the means of a judgment creditor, by having a judgment obtained against him for that purpose; and that course seems to have been contemplated by the parties,

Opinion of the Court. Syllabus.

as appears from Moore's letter to Pickett, wherein he speaks of the holders of the certificates of purchase being glad to get their money, without his getting a judgment against Pickett in the circuit court, which saved considerable expense.

We think, too, this trust is sufficiently manifested and proved by a writing signed by Moore, as required by the statute of frauds, and that is, the letter from Moore to Pickett of the date of March 30, 1863, taken in connection with the surrounding facts and circumstances in proof. Those facts and circumstances serve to identify the subject-matter of the letter as the premises in question.

The letter, which is too lengthy for insertion here, characterizes the proceeding as a redemption and not as a purchase; it shows the existence of a previous engagement to redeem the lands; acts of Moore in respect to the land are therein submitted to Pickett for approval; he asks directions for the future in regard to the premises, and permission from Pickett to fix a division fence between them and Leonard's land. Nowhere in the letter is there an indication of any claim to the land as owner, by Moore, but on the contrary it throughout recognizes Pickett as the owner and himself as acting for Pickett, and in his behalf in redeeming the land. The decree must be affirmed.

1. CONTRACT-services under special contract—recovery without full performance. In an action to recover for work and labor done, and materials furnished, in the erection of a church, it appeared there was a special contract to complete the building by a certain day at a certain price, payable in installments, and that the plaintiff did not complete the same, defendants claiming that he had abandoned the work. The court instructed the jury for the plaintiff, that if they believed "from the evidence, that defendants commit11-62D ILL.

Syllabus. Opinion of the Court.

ted the first breach of the contract by ignoring their obligations under it, and on account of such breach by the defendants the plaintiff is entitled to recover for the full amount of the work done by him at the time the defendants took possession of the building, to be estimated according to the original contract price, if the jury find from the evidence that such work has not been all paid for:" Held, that the instruction was obscure and calculated to mislead. The breach of defendants relied on to justify an abandonment should have been stated and left to the jury to be found from the evidence.

2. SAME-recovery on partial performance. In an action seeking to recover for services on partial performance of a special contract on the ground of cause for not fully performing, where there was proof of payment, it is error to instruct the jury that if there was cause for abandoning the work before completion, the plaintiff is entitled to recover for the full amount of the work done according to the contract price, provided the work had not all been paid for. It should have authorized the recovery of the unpaid balance only.

APPEAL from the Superior Court of Cook County; the Hon. WILLIAM A. PORTER, Judge, presiding.

Mr. H. A. WHITE and Mr. W. T. BURGESS, for the appellants.

Mr. JOHN W. KREAMER and Mr. H. B. HURD, for the appellee.

Per CURIAM: This was an action of assumpsit, brought by Hubble to recover for work and labor done, and materials furnished by him toward the erection of a church edifice for this society.

The facts in evidence disclose that a contract in writing was entered into between the parties for the work and materials for this building, to be completed by the 15th day of June, 1869, for $7,700, to be paid, excepting twenty per cent of it, by installments, as the work progressed.

Hubble not having completed the building by the time specified, and having, as claimed, abandoned the work, the trustees of the society employed other workmen and completed the work themselves.

Opinion of the Court.

The trial resulted in a verdict and judgment in favor of the plaintiff below, and the defendants appealed.

We deem it unnecessary to notice more than one of the assignments of error, and that is, in the giving of the seventh instruction for the plaintiff, which was as follows:

7. "If the jury believe, from the evidence, and under the instructions, that the defendants committed the first breach of the contract, by ignoring their obligations under it, and on account of such breach by the defendants, the plaintiff is entitled to recover for the full amount of the work done by him at the time the defendants took possession of the building, to be estimated according to the original contract price, if the jury find, from the evidence, that such work has not been all paid for.”

This instruction was obscure, and calculated to mislead the jury. They were left to wander in a field of too much conjecture and indefiniteness in finding whether the defendants had ignored their obligations under their contract.

They might have considered the defendants had done that, although they had actually kept their contract. It was in evidence that the defendants asked a bond of the plaintiff, to secure them against the liens of sub-contractors in payments they should make; and this might have been deemed "ignoring their obligations under" the contract, although there might not have been any breach of the contract in not making any payment that was due according to its terms. Whatever act or omission might have been relied upon as constituting a breach of the contract, the jury should have been left to find that specific fact.

The instruction also authorized the jury, in case they found that the work done by the plaintiff had not all been paid for, to find for the plaintiff for the full amount of the work done by him, instead of for the unpaid portion of it-it being in evidence that payments had been made for the work.

For error in giving this instruction the judgment is reversed and the cause remanded. Judgment reversed.

Syllabus.

ALVAH D. DREW

v.

LEONARD W. BEALL.

1. BILL OF EXCEPTIONS—instructions. When the bill of exceptions does not contain any instructions or any ruling of the court thereon, nor exception to any such ruling, this court can not take notice of any. The fact that the clerk has copied into the transcript the instructions given and refused and exceptions, does not make them a part of the record. This can be done only by incorporating them into the bill of exceptions.

2. NEW TRIAL-exception. The overruling of a motion for a new trial can not be assigned for error when the bill of exceptions fails to show an exception taken to the ruling of the court.

3. EVIDENCE-cross-examination. The plantiff, as a witness in his own behalf, was asked the value of certain land. He had already shown that he was competent to give an opinion of the value of the land. The defendant asked leave to cross-examine him as to his means of knowledge before answering the question, which the court refused: Held, no error.

4. EVIDENCE-to show fraud in sale. In an action to recover damages for frand and deceit in the sale or exchange of land-consisting of false representations as to the nature, quality, and value of the land sold-a witness was asked whether defendant told him a certain other person had shown him the land: Held, that the question was clearly proper. Whether defendant had seen the land or not, had a material bearing on the question of fraud.

5. HEARSAY EVIDENCE. The defendant in a suit brought to recover damages on the ground of false and fraudulent representations made by him in effecting a sale of Missouri lands to plaintiff, produced a witness who had entered the land and had sold the same to one H, and asked the witness, "What did I say to you in connection with the buying?" Held, that an objection to the question was properly sustained as calling for mere hearsay testimony.

6. EVIDENCE-on question of fraud. In the same case the defendant testified that he bought the land of one H, and was then asked, "How much did H tell you was prairie and how much timber, at the time you purchased of him?" The court sustained plaintiff's objection to the question. It appeared that this took place about eleven years before the sale to plaintiff, and defendant's representations as to the character and quality of the land from personal knowledge acquired about three years before the sale: Held, that while the statements of H to defendant might not have been altogether irrelevant as affecting defendant's honest belief of the condition and quality