62 210 28a 394 62 210 37a 182 37a 563 62 210 58a 578 Opinion of the Court. Syllabus. The defendant moved to exclude this testimony from the jury, on the ground that it did not sustain nor tend to sustain the declaration, which motion the court overruled, and defendant excepted thereto. This evidence did not tend to prove the assault and battery, or assault laid in the declaration, and did tend to prejudice the jury against the defendant. There should not have been brought into the trial of the simple issue in this case any thing which might be regarded as slanderous matter, or other improper conduct of the defendant, to make against him, and, by its consideration, be likely to influence the verdict of the jury. Judging from the amount of the verdict, and a view of the whole testimony taken together, the jury would seem to have been led to their verdict by the consideration of something else than the legitimate testimony in the case. We think the court should have excluded the testimony as entirely irrelevant to the issue on trial. For not doing so the judgment is reversed, and the cause remanded. Judgment reversed. EZEKIEL SMITH v. ARCHIBALD YOUNG et al. 1. ATTORNEY-equitable lien-equity jurisdiction. Where a bill in chancery showed that complainant made a contract with the defendants, who were non-residents, by which he undertook the collection of a debt secured on a tract of land, incurring all necessary expenses and costs, and assuming all risks, and for which, if successful, he was to receive one-fifth of the proceeds, whether land or money; that a suit in chancery was commenced by him and prosecuted to final decree, a sale of the land made, and certificate of purchase issued to one of defendants, and that they had refused to recognize the rights of complainant, with prayer for a decree for one-fifth of the land, if not redeemed, otherwise for one-fifth of the pro Opinion of the Court. ceeds: Held, on demurrer, that the complainant was entitled to the relief sought, being entitled to an equitable lien on the land under the contract. APPEAL from the Circuit Court of LaSalle County; the Hon. EDWIN S. LELAND, Judge, presiding. Mr. J. H. KNOWLTON, for the appellant. Messrs. BLANCHARD & SILVER, for the appellees. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court: The bill in this case, alleges that the complainant, Smith, made a contract with Young & Van Kleek, resident in New York, by which he was to undertake the collection of a debt secured on a tract of land in LaSalle County, incurring all necessary expenses and costs himself, assuming all risks, and for his services to have one-fifth of the proceeds, whether land or money. The bill further shows the prosecution of a suit in chancery to a final decree, a sale of the land, a certificate of purchase issued to Young, and a refusal by Young & Van Kleek to recognize the rights of complainant. The bill prays a decree for one-fifth of the proceeds if the land is redeemed, or a conveyance of an undivided fifth of the land if it is not redeemed. On the allegations of the bill we think the complainant entitled to relief. Without considering whether he could maintain an action at law, and recover a judgment before the land is converted into money, it is sufficient to say that under his contract he has an equitable lien upon one-fifth of the land, which is in danger of being lost by the unjust course of the defendants. The case, as presented by the bill, is wholly unlike Morgan v. Roberts, 38 Ill. 45, cited by counsel for appellees. In that case one of the attorneys entirely abandoned the case he had undertaken, and his client was obliged to employ new counsel. Here the complainant did not abandon the cause, Syllabus. Statement of the case. but merely employed an attorney resident in the county to assist him. Decree reversed. RICHARD BIRD et al. v. HUGH FORCEMAN et al. 1. CONTRACT-representations inducing sale. Where a party purchasing hogs for the market not being aware of the fact that the prices had advanced in Chicago, but relying upon a newspaper report, represented that hogs were on the decline in the market at Chicago, and, in fact communicated all the information within his knowledge on the subject, and thereby induced the owner of a lot of hogs to agree to sell and deliver them at a certain price per pound: Held, that the seller could not refuse to deliver, on the ground that the prices had advanced instead of declining. 2. INSTRUCTION—assuming the existence of a contract. In a suit to recover damages for the non-delivery of hogs under an alleged contract, the court instructed the jury as follows: "It is incumbent on the defendants, under the contract alleged in plaintiff's declaration, to show an offer to perform, or some excuse for non-performance on their part, in order to excuse themselves from liability to pay damages, if the evidence shows that plaintiffs were ready and willing to perform their part of the contract:" Held, not liable to the objection that it assumed the existence of the contract, and when taken in connection with the others given could not mislead the jury. APPEAL from the Circuit Court of Warren County; the Hon. ARTHUR A. SMITH, Judge, presiding. This was a suit brought by appellees against appellants, to recover damages for the non-performance of a contract for the sale and delivery of forty-five fat hogs. It appeared that appellees had offered seven cents per pound for the hogs, but that appellants asked more. One of appellees said, that the last Chicago Times he had seen, quoted hogs of that quality on the decline. Upon this, appellants agreed to sell and deliver at the price offered, according to the evi Statement of the case. dence of appellees, appellants testifying that the sale was conditional, and dependent upon the fact that the price was on the decline in Chicago. It appeared from the Chicago Times of the previous day, that the price was on the decline. It also appeared, that in fact on the day of the purchase the price had advanced, but that appellees did not know it. The court, for the plaintiffs, gave the following instructions: 1. "If the jury believe, from the evidence, that the defendants contracted with the plaintiffs, to deliver to plaintiffs a certain number of fat hogs at the time and in the manner stated in plaintiffs' declaration; and also that plaintiffs were ready and willing to receive and pay for the hogs at the time and place, and at the price agreed upon, as plaintiffs have in their declaration alleged, the defendants were bound to offer to deliver the hogs in accordance with the terms of the contract, or pay the damages occasioned by their non-performance or failure to deliver the said hogs. 2. "It is incumbent on the defendants under the contract alleged in plaintiff's declaration to show an offer to perform, or some sufficient excuse for non-performance on their part, in order to excuse themselves from liability to pay damages, if the evidence shows that the plaintiffs were ready and willing to perform their part of the contract. 3. "The jury are instructed that the measure of damages in this case is the difference between the contract price and what the hogs were actually worth in the market at Prairie City, where they were to be delivered." At the instance of appellants the court instructed the jury: 1. "That if they believe, from the evidence, that plaintiff Cates, went to the residence of Birds to buy their hogs, and then proposed to give said Birds seven cents per pound for said hogs, telling them that hogs were on the decline; and defendants, or one of them, told the plaintiff Cates, that if hogs were on the decline at that time they, the plaintiffs, could have them at seven cents per pound, and that they, the defendants, would deliver them at Prairie City the next Monday; and, if the jury further believe, from the evidence, that hogs were not, at that Statement of the case. Opinion of the Court. time, on the decline, but were really advancing in price, then the defendants were under no obligations to deliver the said hogs to the plaintiffs on such contract, and the verdict should 'be for defendants. 2. "The court instructs the jury that plaintiffs, in this case, can only be entitled to recover by proving the contract that they have set out in their declaration; that it devolves upon them to make out their case; that they must do so by a preponderance of testimony; and, if the jury believe, from the evidence, that the defendants agreed to sell their hogs to plaintiffs for seven cents a pound on condition that the price of hogs was on the decline on the 17th day of September, being the date of the contract, and that such was the contract between them, then the jury will find for the defendants, if they further believe, from the evidence, that hogs were not on the decline, but were, in fact, advancing in price; and it makes no difference, under such a state of facts, if, from the evidence, the jury believe them to have existed, whether the plaintiffs knew of the decline in the price of hogs or not." The jury returned a verdict for appellees and assessed their damages at $192.37. Motion for new trial overruled and judgment on the verdict. Exception taken and an appeal allowed. Messrs. STEWART & PHELPS, for the appellants. Messrs. BAILEY & COLE, for the appellees. Mr. JUSTICE THORNTON delivered the opinion of the Court: There is no error in this record to justify a reversal of the judgment. After a careful reading we can not say that the verdict is against the weight of the evidence. The plaintiffs below proved that they purchased the hogs at seven cents per pound, and that they remarked that the price of hogs was on the decline, according to the report of the market in the Chicago Times. That paper, dated on the day before the |