(fionrt of jfttinois. 
 
 C?O / ^Riri 
 
 NORTHERN GRAND DIVISION. 
 SEPTEMBER TERM, A. D. 1874. 
 
 ELIJAH S. ALEXANDER, 
 
 APPELLANT, 
 
 vs. 
 
 DAVID F. RUNDLE, 
 
 APPELLEES. 
 
 Appeal from the 
 
 Circuit Court of 
 Cook County. 
 
 BRIEF AND ARGUMENT FOR APPELLANT. 
 By SLEEPER & WHITON.
 
 (j^onrt of 
 
 NORTHERN GRAND DIVISION. 
 SEPTEMBER TERM, A. D. 1874. 
 
 
 ELIJAH S. ALEXANDER, , 
 
 APPELLANT,/ 
 vs i Appeal from the 
 
 1 Circuit Court of 
 
 Cook County. 
 
 BRIEF AND ARGUMENT FOR APPELLANT. 
 
 FACTS. 
 
 This action was trover, appellee against appellant, in the 
 Circuit Court of Cook County, for $7,000 note of appellant, pay- 
 able to order Seymour & Rundle, dated June 24th, 1872, one year 
 from date. 
 
 Carmichael & Co. had a contract with the Chicago & North- 
 western Railway for building a tunnel, on what was called the 
 Baraboo Air Line. Seymour & Rundle had half interest in it. 
 Hopper, Boyle & Co. had a contract with the Philips & Colby
 
 Construction Company, for building forty miles of the]Wisconsin 
 Central Railroad, and Seymour & Rundle had a third interest in 
 it, and another contract with the same company for building next 
 sixty miles of the same road, beyond the forty miles. Seymour 
 & Rundle had a third interest in that also. We think that Run- 
 die's name is not known in any of these contracts, though the 
 fact is not material, except as it bears upon Seymour's real inter- 
 est in this note. Fox & Howard were contractors, having their 
 place of business in Chicago, and as early as April or May, 1872, 
 Seymour began to negotiate with Howard to have his firm buy 
 Rundle's interest in these three contracts. He made statements 
 to Howard, as to the condition of the work, under the several 
 contracts, the character of it, and of their property, supplies, &c., 
 and Howard made computations and calculations, from those 
 statements, to enable him to arrive at a conclusion, as to the de- 
 sirability of becoming interested in them, and preliminary to de- 
 termining whether his firm would buy Rundle's interest. From 
 the statements made to him by Seymour, and the computations 
 and investigations made by Howard, based entire!} 7 upon Sey- 
 mour's statements, Howard became satisfied that the contracts 
 were desirable ; that the work was profitable, and money could 
 be made by doing it. Upon consultation with his partner, Fox, 
 they declined to take hold of them, partly for want of time, and 
 partly for want of means to invest, and informed Seymour of 
 their determination. Seymour then asked Ho\vard to refer him 
 to some person who would be a good man to engage in that 
 kind of work, and who would buy Rundle's interest. Howard 
 knew Alexander. Their offices were in the same building, and 
 through Howard's instrumentality Seymour and Alexander were 
 brought together. Negotiations, between Seymour and Alexan- 
 der, followed their introduction, relative to the sale to and pur- 
 chase by Alexander of Rundle's interest in the three contracts.
 
 Howard was present at most of the interviews between Seymour 
 and Alexander, indeed all, at which there was anything particu- 
 larly done or talked. These negotiations continued for consid- 
 erable time, a fortnight or more. The memoranda of computa- 
 tions^vhich Howard had made, from Seymour's statements, were 
 present at the interviews, or some of them. Rundle and Col. 
 Hopper were present at one or more of the interviews, between 
 Seymour, Howard, and Alexander. At many if not all of these 
 interviews, conversation was had between Seymour and Alexan- 
 der and Howard, relative to the condition of the work under 
 these three contracts, or really on the Baraboo Air Line Tunnel 
 contract, and the contract for building the first forty miles of the 
 Wisconsin Central Railroad. 
 
 SEYMOURS'S STATEMENTS HOPPER & RUNDLE. 
 
 It was stated by Seymour, that he and Rundle had put into 
 the work on the tunnel contract $3000, of which Rundle had 
 put in half. That there had been some accumulation in that 
 work, by-way of profits, that it was a good contract and profi- 
 table. He also stated, that the firm of Hopper, Boyle & Co., 
 had invested, in plant, supplies, teams, tools, carts, wagons, &c., 
 &c., on Wisconsin Central Railroad contract, from $33.000 to 
 $35.000. That the value of that remaining was say, $18,980, 
 but in round numbers called $18.000; that they had in the hands 
 of the Philips & Colby Construction Company, for building the 
 Wisconsin Central Railroad, retained percentage to the amount 
 of $ii.ooo. It arose in this way, by the contract between this 
 construction company, and Hopper, Boyle & Co., 85 per cent, 
 of each estimate for work, was to be paid to Hopper, Boyle & 
 Co., and 15 per cent retained by the construction company, 
 until the whole work was completed, when it was to be paid 
 over. (Sevmour savs he told them there was from $8.000 to
 
 $9,000, to $10.000, to $11.000, is not certain just what he did say, 
 while Alexander says, $11,000, and Howard $10,000 to $11,000.) 
 He also stated, that they had made application to the construc- 
 tion company, for a bonus or additional pay for doing the work 
 on this 40 miles, to the amount of $40,000; were sure of getting 
 from $30,000 to $35,000. From Seymour's testimony this appli- 
 cation or claim was based upon some action of the construc- 
 tion company, in changing the line, so as to lessen the cuts or ex- 
 cavation and filling on the line, and upon the fact that they had 
 found rock, where there was no estimate for it, as well as on 
 account of some delays by reason of bad whether or other 
 causes. He also stated, that the work was nearly all sub-let to 
 responsible sub-contractors, who were actively at work, and 
 doing well at the prices for which the work was sub-let to them. 
 That the work was self sustaining at the 85 per cent, and the 
 profit was at least the 15 per cent, retained in the hands of the 
 construction company, that the work on this forty miles was in 
 such a state of forwardness, that it would be completed by the 
 I5th, of August, the contract being that it should be completed 
 by July i$th, and that Hopper, Boyle & Co., did not owe debts 
 exceeding in amount $1000 or $1,500. At some time during the 
 negotiations at 441 Wabash avenue Alexander made a memor- 
 andum in writing of the items of the plant on the railroad. He 
 produced it on the trial, it is found at page 21, abstract. There 
 is some dispute between Alexander, Seymour, Rundle, and 
 Howard about the memorandum, and we shall refer to the 
 statements of the witnesses, relative to it, farther on in this argu- 
 ment. We shall assume and prove, by an examination of the 
 evidence hereafter, that before the negotiations were closed, 
 Rundle saw this statement and affirmed its correctness. We fur- 
 ther assume that Seymour in the negotiations was acting by Run- 
 die's authority, or that he ratified what Seymour had said and
 
 done. During the time the negotiations were going on, Rundle 
 was on the work on the Wisconsin Central Railroad. He came 
 from there to Chicago, some few days before the final consuma- 
 tion of the sale of his interest, to be, and was personally present 
 and closed the trade negotiated by Seymour. 
 
 SIXTY-MILE CONTRACT. 
 
 Very little work had been done, at this time, on the sixty 
 miles for which Hopper, Boyle & Co. had a contract. 
 
 The~statements, relative to this contract and work under it 
 were substantially that it was a far better contract than the forty- 
 mile contract; that they were to receive about 25 per cent, more 
 than they were receiving for the same kind of work on the forty 
 miles; that it was a very desirable and profitable contract, and 
 an immense amount of money in it by way of profits. 
 
 FINAL PROPOSITION. 
 
 The proposition finally made to Alexander, after the matter 
 had been discussed, examined and explained, was that, for the 
 money Rundle had in the Barraboo tunnel contract, Alexander 
 should pay two dollars for one; that Seymour & Rundle together 
 had put in $3,000, of which Rundle had put in half, or $1,500, 
 
 and for that they required Alexander to pay $3,ooo 
 
 Plant on the Wis. Central valued at $18,000. Seymour 
 & Rundle's . one-third, $6,000. Rundle's one-half. . . . 3,000 
 The percentage retained by the construction company 
 was $11,000. The bonus which the construction com- 
 pany would pay them, $30,000 to $35,000; they finally 
 called the two $42,000. Seymour & Rundle's one-third, 
 $14,000. Rundle's one-half of $14,000 was 7,000 
 
 Altogether making $13,000 
 
 The tunnel contract, $3,000, and one-sixth of the plant on the
 
 G 
 
 Wisconsin Central, $3,000, to be taken as $6,000 in hand 
 which Alexander was to pay in cash. Not in hand, one- 
 sixth of $42,000, $7,000, but would be received in the future; 
 and Seymour & Rundle proposed to take Alexander's note, due 
 in one year, without interest, for that item. 
 
 The sixty-mile contract. Alexander was to come into on the 
 " ground floor," as they called it, the same as if he had been one 
 of the original parties to the contract indeed, they claimed to 
 let him in on the ground floor of the forty-mile contract the same 
 as if he had originally been one of the parties to it, he paying 
 only for the money actually invested on the railroad contract, 
 and one-sixth of the retained percentage and the bonus they were 
 sure to get from the construction company, and which they rep- 
 resented were accumulated profits on the work already done. 
 
 ALEXANDER ACCEPTS. 
 
 Relying upon the truth of their statements, and having no 
 } *" Jl J other knowledge of, or information relative to the character or 
 r* progress of the work, the value of the plant, the amount of the 
 *&W**KT retained percentage, the prospect of obtaining the bonus from 
 * * 4m*/ that company, the indebtedness of Hopper, Boyle & Co., 
 whether the work was or not self-sustaining upon the 85 per 
 5^&K cen t-> or whether the sub-contractors were at work and making 
 L /w~ money at prices they agreed to do their work for as he ex- 
 _ id* presses it, " without seeing a book or having a figure except 
 / what they gave him," Alexander accepted their proposition, 
 and agreed to pay in cash two dollars for one $3,000 for one- 
 fourth of the tunnel contract, and $3,000 for one-sixth of the 
 value of the plant, and agreed to give his note for $7,000 for 
 one-sixth of the retained percentage and the expected bonus, and 
 to step into Rundle's shoes in the three contracts. They agreed 
 to have writings drawn and executed at a future time.
 
 PREPARATION AND EXECUTION OF THE ASSIGNMENT. 
 
 The terms of the contract were agreed upon in the latter 
 part of the week from the 2oth to the 22d of June. Sunday 
 morning Rundle called upon Mr. Edwin Walker, an attorney at 
 law, and Alexander's legal adviser, and at his request Walker 
 went to Alexander's house, to hear their statements of the con- 
 tract, preparatory to preparing a written assignment of the inter- 
 est of Rundle in the three contracts, to Alexander. The parties 
 stated the terms of their contract to Walker. (He states them 
 in detail in his testimony, and corroborates Alexander and How- 
 ard, and sustains the statement given above, of the proposition.) 
 On the 24th day of June, 1872, he had the paper prepared, the 
 parties appeared at his office, executed the writing prepared by 
 Walker, which is found at page 33 of the abstract. Alexander 
 paid the $6,000 in money, and gave this note in question for 
 $7,000. Seymour and Rundle at once dissolved their partnership, 
 signed articles of dissolution, to which was appended a statement 
 that, the business of the firm would still be continued at 441 Wa- 
 bash avenue, under the firm name and style of Mark T. Seymour 
 & Co.. which firm was composed of M. T. Seymour, Joseph O. 
 Rutter, and E. S. Alexander. (See Abstract page 28.) They 
 printed cards and letter-heads with firm name,fixing the place 
 of business there, and put up their sign there. Rundle surren- 
 dered to Alexander the key to the office dpor; the keys to the 
 safe were carried by the bookkeeper and Seymour. 
 
 THEY GO TO THE WORK. 
 
 On the 5th of July, 1872, Seymour, Rundle and Alexander 
 left Chicago to go to the work. Rundle had come from there 
 but a few days before. They arrived at Steven's Point, Wiscon- 
 sin, where the headquarters of Hopper, Boyle & Co. were. They 
 met Flynn, one of the members of the firm, who had come there
 
 from Des Moines, Iowa, sixty days before, and bought into the 
 contract for building the first forty miles. He had pnt in $9,000 
 in money, and it was all sunk and lost. He was preparing to 
 abandon the work, and take his teams, wagons, carts and tools 
 away. He owned all, or nearly all, teams, carts, wagons, and 
 tools, fit for use on the work. The sub-contractors were not at 
 work, but had surrendered their respective jobs to Hopper, 
 Boyle & Co., with the exception of two, which Rundle admit- 
 ted he knew when the contract was signed, but he suppressed 
 the truth in relation to it from Alexander. The supplies, that 
 had been represented to be on hand, were not there. The four 
 thousand bushels of corn had dwindled into one hundred to one 
 hundred and twenty-five bags, holding two to two and half bush- 
 els each, and what was there was rotten and worthless. The 
 three thousand bushels of oats had dwindled into the same num- 
 ber of bushels as the corn ; the horses and mules were unfit for 
 use, and really the whole of the plant, which they had estimated 
 at eighteen thousand dollars, had dwindled almost to as many 
 hundreds of dollars. The company, instead of owing one thou- 
 sand to fifteen huudred dollars debts, were owing, as appeared 
 from their books, $28,846,69 (page 29 abstract, and the testimo- 
 ny of Alexander and Montgomery,) and in fact were owing 
 $40,632,52. See Alexander's testimony, page 31 ; Montgome- 
 ry's testimony, page 55 and following, and 58 and 59 ; and the 
 corrected account made by Montgomery, page 59, abstract. 
 Instead of 85 per cent, paying the cost of the work, the whole 
 amount of the contract price was insufficient by $38,000; and 
 instead of $11,000 retained percentage, there was only a little 
 over $3,100. Everything had been misrepresented. 
 
 Alexander finding that Flynn was determined to leave the 
 work, to avoid the demoralization which would result, labored 
 with him, in the presence of Seymour & Rundle, to induce him
 
 to stay till the forty miles was completed; and as a final induce- 
 ment, agreed to make good his loss of $9,000 to him, if he would 
 do so. Flynn consented to stay. 
 
 Having arranged with Flynn to stay, Alexander turned 
 upon Seymour & Rundle, and demanded the return of his money 
 and the note he had given. They refused to comply, but said 
 they would straighten matters up when they got home would 
 do whatever was right. Alexander, in their presence, and with 
 their acquiesence, at least, directed Montgomery, the bookkeeper, 
 to make out from the books and send him at Chicago, a statement 
 of the liabilities and assets of Hopper, Boyle & Co., and the in- 
 dividual accounts of the members. The statement is found at 
 page 25 of Abstract. It was sent in a letter dated July 13, 1.871. 
 
 WHAT WAS DONE AFTER THEY RETURNED. 
 
 It will be remembered that Rundle came to Chicago from 
 the work, just before the closing of the contract with Alexander, 
 which he and Seymour had been negotiating for some two weeks, 
 more or less ; that prior to this time both Rundle and Hopper 
 had been present at some of the interviews. Rundle in his tes- 
 timony, at page 69 of Abstract, 469 Record, states that " Sey- 
 " mour, or Seymour and Alexander, exhibited the statement to 
 " me, and asked me if it was correct ; or, he said I suppose it is 
 " correct. I told him I presumed likely, though Seymour knew 
 " as much about it as I did. I refer to the statement Alexander 
 " exhibited here yesterday." 
 
 While he dodges around the truth, we insist that, his testi- 
 mony shows that he knew all about this statement. It will also 
 be remembered that Seymour, Rundle, and Alexander left Chi- 
 cago for the work July 5th; that immediately on reaching Stevens' 
 Point, the facts which existed there made it evident that, the rose- 
 colored picture, Seymour & Rundle had drawn, was a creature
 
 TO 
 
 of their imagination, not even having an outline of truth for its 
 support ; that there never was the least foundation for the state- 
 ments made, and they were forced to admit it then and there. 
 That Alexander then and there demanded the return of his note 
 and repayment of his money ; that they put him oft' till thev got 
 home, meaning Chicago ; their apology for the condition of af- 
 fairs being that they were deceived did not intend to deceive 
 him ; that in their presence, if they did not unite with him, Alex- 
 ander ordered a statement to be made and sent to him at Chicago ; 
 that they all came home. Alexander at once went to Howard, 
 who, to use his own expression, " had roped Alexander into this 
 matter," and told him he " had been robbed," showing clearer 
 than anything else could, the real truth as it impressed itself up- 
 on Alexander at the time. Alexander told Howard the facts as 
 he found them on the work, and invoked his aid, to extricate 
 him from the position in which he found himself. Montgomery, 
 the bookkeeper, sent the statement on the I3thjuly. In the 
 meantime Seymour, Rundle, Alexander, and Howard, met at 
 441 Wabash Avenue, Alexander demanding redress ; that his 
 note should be returned to him, and claiming that he had been 
 deceived by misrepresentations as to the condition of things 
 there ; that there was no consideration for the note. Seymour & 
 Rundle sought to parry his demand, by asking him to compro- 
 mise, to pay part of it. With $3,000 of Alexander's money in 
 their pockets, paid for one-sixth of that plant, that, at the outside 
 figures, was not worth $1,000 ; knowing then that the state- 
 ments made to Alexander, and upon which he had relied, were 
 untrue ; Rundle knowing that some if not all of them were un- 
 true, as he admitted, and as he must have known, seeing that a 
 week before he made the trade with Alexander, he was on the 
 work, and came direct from there to close it, after it had been 
 negotiated for him by Seymour; they had the coolness and
 
 II 
 
 effrontery to ask him to pay more money, for a thing that was 
 not only worthless, but a curse to any man to have, a certain, 
 sure maelstrom, which had swallowed all that the parties had to 
 put into it, and which, in the language of Flynn, whose $9,000 
 had been lost in sixty days, was " sure to ruin any company to 
 " undertake to continue it and put it through." 
 
 Finally, having received this statement, showing the debts 
 to be $28,846.69 all but the $13,000 "current Pay Rolls," of 
 long standing ; that the estimate of the June work, which had 
 cost $13,000 for the mere labor of men, not including teams, sup- 
 plies, superintendent, &c., was only$n,ooo; that the retained 
 percentage was only $8,941 instead of $11,000, and which, upon 
 further investigation turned out to be only $3,100, showing debts 
 over the June work of $15,846,69, instead of $1,000 to $1,500; 
 they all knowing the condition of affairs on the work, as well as 
 that there was no possibility of completing it by i5th of August, 
 Seymour, Rundle, Alexander, and Howard met for the last time, 
 July 18, 1872, at the office, 441 Wabash Avenue, and renewed 
 the conversation had at previous meetings, since the return trom 
 the work. 
 
 THE TRANSACTION OF JULY l8, 1872. 
 
 It is evident that, that interview was not smooth and placid, 
 " they were not a happy family." Alexander did not make his 
 demand for the surrender of that note, in honied words ; all that 
 kind of talk and manner had been tried and exhausted. He was 
 very pronounced in his language ; he did not put his demand as 
 if he were requesting a favor ; he demanded it as a right ; told 
 them he had been deceived ; that they had misrepresented the 
 facts. He was terribly in earnest in what he had come there to 
 accomplish. Seymour and Rundle winced under the charges he 
 made, because he wielded the sword of truth. So fierce and
 
 12 
 
 denunciatory was his language, and so personal was he in his 
 charges of bad faith on their part, that Rundle affected an air of 
 wounded honor, and withdrew from the contest, leaving Sey- 
 mour in possession of the note, saying to him, "you have as 
 much interest in it as I have, do with it as you are a mind to, 
 and any settlement you may make, I will be satisfied with." 
 We know there is a dispute between them on this point. Run- 
 die says he told Seymour to keep it for him and he would hold 
 him responsible. Seymour says the language was "take the 
 note and do as you are a mind to with it, and I will hold you re- 
 sponsible," and they both undertook to say, and to make the jury 
 believe, that Alexander was not there demanding the surrender 
 of the note. Alexander and Howard say that was just what he 
 was there for. And while Rundle says that, all that Alexander said 
 which made him mad was, that the work was a pretty bad looking 
 piece of work, or language of that kind, Alexander and How- 
 ard say that, Alexander charged him with misrepresentation and 
 fraud, and they both say that Rundle's language substantially 
 was, " Mark you have as much interest in the note as I have, 
 take it and do what you are a mind to with it, and any settle- 
 ment you make with Alexander I shall be satisfied with." Why 
 did Rundle leave the note with Seymour if not to make settle- 
 ment, which his offended dignity would not allow him to stay 
 and consummate himself ? If no settlement were to be made 
 why did he not carry it away with him ? Why does he say, as 
 at page six of Abstract, "I gave the note to Seymour because I 
 would just as soon he would hold the note and settle the matter 
 as myself to settle the matter in regard to that to make it sat- 
 isfactory to Alexander?" A casual reading of his testimony, and 
 comparison with Seymour's, and the undisputed facts, will con- 
 vince any man that, he was wilfully lying on every material
 
 point, or corruptly suppressing the truth, whenever he thought it 
 would injure his cause if brought to light. There is not so wide 
 a difference between Seymour, Alexander, and Howard, as really 
 to affect the case. He says Rundle told him to do what he had 
 a mind to with the note. Alexander and Howard say the same 
 thing. This was authority to make any settlement with Alex- 
 ander he had a mind to; to comply with Alexander's demand 
 that the note be surrendered to him. (We have seen that Rundle 
 talks about settling with Alexander.) The dispute then was 
 whether the note should be surrendered. 
 
 Before an agreement had been reached, Rundle got mad, took 
 the note from his pocket, gave it to Seymour "because he had just 
 as soon he would settle the matter as himself," and told him to do 
 what he was a mind to with it. He left Seymour, Alexander, 
 and Howard there to complete the work begun and which all 
 had come there to do to make the settlement, which Alexan- 
 der demanded, satisfactory to him. What if Rundle did say 
 " I'll hold you responsible ?" It did not mean that Seymour 
 should not exercise his judgment, in settling the matter with Al- 
 exander, nor did it mean that he would hold him responsible for 
 the note. It meant only that he would hold him responsible for 
 the settlement he made. He gave Seymour power to act in his 
 discretion, and in the exercise of that discretion, even on Sey- 
 mour's statement, he had authority to make the arrangement he 
 did make, with reference to that note; and when you add the 
 weight of the testimony of Alexander and Howard, there was 
 no question whatever as to Seymour's power to surrender that 
 note to Alexander, as he and Rundle ought to have done at 
 once. The truth is, knowing what they must have known, 
 from being connected with that work as long as they had, they 
 knew better than to make the representation they did. It was
 
 a wicked fraudulent thing in them, to draw anybody into the 
 contract, they led Alexander into. But having done what they 
 had, when the facts were discovered upon the first sight of the 
 work, it was a great fraud on their part to hesitate a moment 
 about surrendering the note. Seymour knew it and felt it, proba- 
 bly Rundle did, but he did not like the alternative of being 
 branded a fool or knave, and so he ran away, leaving Seymour 
 to do what was right, to the extent of surrendering the note, " to 
 settle the matter with regard to that, to make it satisfactory to 
 Alexander." 
 
 WHAT WAS DONE AFTER RUNDLE LEFT. 
 
 Rundle says Howard was not there when he handed the 
 note to Seymour, and went away. Seymour can't be positive; 
 but, feeling the necessity of having Howard away, he " screws 
 his courage to the sticking point," and swears that it is his 
 impression he was not there. Alexander and Howard both 
 say he was there. Howard gives a reason why he was 
 there. He had " roped Alexander into these contracts," and felt 
 it a duty to see him out. He and Alexander went there to get 
 that note; and Howard is very certain as to what occurred and 
 what was done. There is no doubt of his being there. Even 
 Seymour says (p. 99 Rec., p. 13 Abs.) that he had a conversa- 
 tion with Alexander similar to what Alexander and Howard 
 both swear, in presence of Howard, there, that day but pre 
 vious to that. 
 
 There are a few things that we may assume as not in dis- 
 pute. Rundle gave that note to Seymour, and went away, tell- 
 ing him "to do as he was a mind to with it; that he could not 
 stay and talk with Alexander;" implying that Seymour could; 
 and he left the note so that Seymour could settle the matter, and
 
 make it satisfactory to Alexander to surrender it, if that alone 
 would satisfy him. 
 
 V 
 
 After Rundle went away, Seymour put that note in the safe, 
 or directed Gaytes, the bookkeeper to do it, and it was done. 
 Alexander, who, until then, had never had a key to any drawer 
 in that safe, had a key given to him. He swears to it, and pro- 
 duces the key on the trial. Howard swears to it. Seymour 
 does not know whether he did or not. As farther evidence, 
 Alexander put into that drawer the letter or memorandum given 
 him by his father-in-law to keep safely. Rundle had no key to 
 the outer door of the safe: there were but two one carried by 
 Seymour, the other by the bookkeeper. When Rundle gave 
 Alexander the key to the office, he asked for the safe key, but 
 Rundle had none. He managed in some way, in September, to get 
 a key to the outside door oi the safe; he did not get one to this 
 drawer, but employed a locksmith to pick the lock, and in that 
 way got the note. If Gaytes had had a key to that drawer, 
 Rundle could have obtained it, as well as the outside key. Now 
 when that drawer was set apart for Alexander's private use, and 
 the note placed therein, and the key given to him, it was placed 
 in his possession, and under his control. 
 
 Here there is some dispute about the agreement made be- 
 tween Alexander and Seymour at the time. We will refer to 
 the statement of Seymour, Alexander and Howard on that point. 
 Alexander's statement of the whole matter commences with the 
 paragraph at the foot of page 26 of Abstract, where he went 
 to Howard after the return to the work. He states on page 27 
 what he told Howard; how they spent their time for three, four, 
 or five days; the conversation that was had at 441 Wabash ave- 
 nue, July i8th; what he said that made Rundle mad; what Run- 
 dle did with the note, and what he said to Seymour when he gave
 
 i6 
 
 the note to him; how Rundle beckoned him to the door, and he 
 went, leaving Seymour and Howard in the private room. On 
 his return, Howard still being there, he says, " Seymour made 
 " the remark to me, that he had made before, that I should not 
 "pay the note; that I ought not, and that it should be surren- 
 " dered to me ; and if it was not satisfactory to Rundle, he would 
 pay his part himself." 
 
 " After talking a little, Seymour says : ' Now, Aleck, this 
 " thing may turn out differently, or better than you expect or 
 " better than it looks to us now. You shall take this note and 
 " put it in the safe, in a drawer that shall be set aside to you, and 
 " the note shall be subject to your order, and be your prop- 
 " erty, and you shall hold it until this work is completed, and if 
 " the work does pay a portion of the profit which we supposed 
 " we did have on hand that is, of the $42,000 for which it is 
 " given as a matter of course you are willing to pay your por- 
 "tion of it'" 
 
 He then relates that the bookkeeper was called on to clear 
 a drawer for him, which was done, the note put" in it, and key 
 given to him, which he produced. He also states that the envel- 
 ope had this superscription on it: "Alexander's personal and 
 private property; to be delivered to no one without his orders." 
 
 Then follows the articles of dissolution. 
 
 His statement as to the matter, on cross-examination, is 
 found at pages 39, 40, and 41 of Abstract. 
 
 Howard's statements, on direct examination, of the conver- 
 sations after Seymour, Rundle and Alexander returned from the 
 work, commences at page 48 of Abstract, 315 of Record, and
 
 continues to 325 of Record and on his cross-examination, page 
 51 Abstract, 342 Record, and continues to 347. 
 
 Seymour's statement on his direct examination is found at 
 page 65 of Abstract, and 444 of Record; on his cross-examination, 
 at page 68 of Abstract, and 462-3 of Record he says, he does 
 not think he stated what Alexander and Howard say he did, but 
 does say, " I will not swear positively that I did not." (Foot of 
 page 68.) 
 
 We have some other evidence corroborating our position. 
 Alexander's statement, of what Seymour said to him, the morn- 
 ing after Alexander returned from the burial of his father-in-law 
 (Abs. pp. 29 and 30), both on Michigan ave. and at his office, in the 
 presence of Tyrrell; as well as the contents of the letter written 
 from the Tremont House. TyrrelPs statement, page 53; Wil- 
 son's statement, page 54; Seymour's version of these two con- 
 versations and the letter, is found at page 150! Abstract, contin- 
 uing on pages 16, 17 and 18, of cross-examination, and 20 of re- 
 direct; also at page 66 of Abstract. An attempt is made to 
 corroborate Seymour by the testimony of his daughter. Her 
 statement begins at page 71 of Abstract, and continues on to 72. 
 
 REVIEW OF ABOVE TESTIMONY. 
 
 We say that there is no escape from the position we assume, 
 that this note was surrendered to Alexander on the i8th of July, 
 1872; and that the abstraction of it from the safe, by Rundle, 
 was a larceny. 
 
 i. We have the positive unequivocal statement of Alexan- 
 der and Howard that, it was agreed between Alexander and Sey- 
 mour that the note was to be cancelled, and that the amount 
 Alexander ever should pay upon it, was what profits ultimately 
 should be made.
 
 i8 
 
 2. We have the fact that the note was put into a drawer in 
 the safe, which was set apart to Alexander, and he was given 
 the key to it. Howard says (Abs. p. 49, Rec. p. 322) that 
 "Alexander had a key given him at that time for a drawer in the 
 safe." Alexander says the same thing, ana produces the key. 
 Rundle had to pick the lock to get the note. 
 
 That, as we have said before, placed the note in Alexander's 
 possession/so that it never could be delivered to any one without 
 his orders, unless the lock was picked or broken, and the note 
 stolen out; as it was, in fact, by Rundle, afterwards. 
 
 3. We have Seymour's statement (Abs. p. 19, Rec. p. 113) 
 when Alexander threatened to prosecute Rundle, and have him 
 locked up, that, "If Rundle did take the note, it -was entirely 
 wrong; that he had no more right to take it than he had to take one 
 of his horses." And while he attempts to make it appear that 
 his proposition to stand by Alexander in the prosecution of Run- 
 dle, was conditional upon Rundle having done wrong, or crimi- 
 nally wrong, it does not lessen the force of his assertion, that, it 
 was wrong for Rundle to take the note, and that he had no more 
 right to take it, than he had to take one of Alexander's horses. 
 Had he taken the horse in the same way he did the note, it 
 would have been larceny. If he had no more right to take the 
 note than the horse, he had no right at all. Taking the note un- 
 der the circumstances he did, without right, was stealing it, just 
 as taking Alexander's horse from his barn would have been lar- 
 ceny. 
 
 4. But Wilson and Tyrrell tell us that Seymour not only 
 said Rundle had no more right to take the note than to take one 
 of Alexander's horses, but they say, he said it was Alexander's 
 personal or private property, corroborating Alexander as to
 
 what he says was written on the envelope. In the note Sey- 
 mour wrote to Alexander from the Tremont House, he clearly 
 recognized Alexander's right to the possession of the note, be- 
 cause he said, " I have your note," and " If I do not see you be- 
 fore 4 o'clock to give it to you, you will find it in the safe at 441 
 Wabash avenue." See Alexander's statement of contents, Abs. 
 page 30, Rec. page 180; Tyrrell's statement, Abs. page 53; 
 Seymour's Abs. page 18, Rec. page 118. He says, "I think I 
 did tell him in that note, if I did not see him to give him the note 
 before 4 o'clock, he would find it in the safe." 
 
 5. One thing is evident, Seymour's memory was very 
 faulty no reliance can be placed upon it. There can be no 
 doubt that Wilson, Tyrrell and Alexander tell the truth. It is 
 not necessary to say, Seymour wilfully misstated it. He was 
 struck down with paralysis August 2d. His memory was im- 
 paired. We think perhaps he did not try very hard to remem- 
 ber. But whatever we may say about him, having the utmost 
 charity, his version of the matter is not to be relied on, either 
 from weakness of memory, or from a purpose not to remember 
 or state the exact truth. Alexander and Howard were there to 
 get that note back. The reason, alleged by Alexander, was that 
 he had been robbed, deceived, defrauded, that there was no consid- 
 eration for the note. Howard went there to aid him, because he 
 "had roped Alexander into the contract." Seymour himself 
 says, at page 13 Abstract; 97 and 98, Record, that he did not 
 tell Alexander that he should not pay that note, and if Rundle 
 found fault about that settlement, he would pay it himselt at the 
 time of the delivery of the note at the very instant of time, but 
 farther on, page record 99, he says, while -denying that he made 
 such statement, at the delivery of the note, then, yet that "I had a 
 " conversation with him in the presence of Howard, verv similar
 
 20 
 
 " to that. It was in our conversation previous to that there that 
 " day. I had stated almost as much a good many times in other 
 " conversations." 
 
 Now this is just what Howard and Alexander say, that all 
 this was said in the presence of Howard. But Seymour endeav- 
 ors to make it appear that it was not said at the -very instant of time 
 when the note went into the safe, and by this quibble, break the 
 force of his statement. As though with his treacherous memory he 
 could tell just what was said at any particular time during that day, 
 in the conversations there. But it was all one conversation, both 
 before and after Rundle left. What was said after was but a contin- 
 uation of what was said before. This matter had been talked over 
 for three, four, or five days. It had been talked over that morn- 
 ing. Alexander was in earnest; made charges of deception, 
 misrepresentation and fraud. Told Rundle he was a fool or a 
 knave. Seymour said, as Alexander and Howard say he said, 
 that he ought not to pay the note should not. Seymour says 
 they had a conversation similar to that. He " had stated almost 
 as much a good many times, in other conversations." All this 
 having taken place, Rundle got mad got up, took the note out 
 of his pocket, gave it to Seymour, even as he says at page 6 of 
 Abstract " because I would just as soon he -would hold the note, 
 and settle the matter, as myself" " To settle the matter in regard 
 to that; to make it satisfactory to Alexander." And Seymour 
 did settle the matter with Alexander, but in the settlement he 
 gained one point, that had not been talked of before that the 
 note should not be destroyed, but held by Alexander, to see 
 whether the work turned out better; whether there would be 
 any of the profits for which it was given, and how much. 
 
 If Seymour's story is true, why did he put the note in the 
 safe? If there was no settlement, why did he not keep the note
 
 21 
 
 himself or return it to Rundle? Why does he say that he "con- 
 sidered no one had a right to take the note out of the safe," it 
 Alexander's rights were not to be protected? Why was it put 
 into the safe and Alexander given a key to the drawer, so that 
 no one could have access to it, if the property in it was not 
 changed, if it continued to belong to Rundle, and he to be enti- 
 tled to the possession? Why did Alexander, when he found it 
 was gone, at once demand its return, and charge larceny upon 
 Rundle, if Rundle had the right to have access to that drawer, 
 and take the note into his own possession? Why did Seymour 
 say, when told by Alexander that Rundle had done wrong, that 
 he had no right to take that note, more than to take Alexander's 
 horse, if Alexander did not have the right to keep that note for 
 some cause? Why say, even as he puts it if Rundle has done 
 wrong, prosecute him, and I will standby you; or, as Alexander 
 and Wilson swear, " do it, and I'll stand by you," without the 
 qualification, if he has done wrong, or criminally wrong if Run- 
 dle had a right to that note ? If he did not know that Rundle 
 had no right to it, and that Alexander had a right to 
 have it remain in that drawer till the question of profits was 
 settled, and if there were none, have it cancelled; why did 
 he not tell Alexander so, and stop his bluster, instead of 
 saying what either he or Alexander or Wilson say he said? 
 Why did Seymour say in his note from the Tremont House, 
 I have your note, arid if I do not see you before four o'clock, to 
 give it to you, you will find it in the safe at 441 Wabash Avenue, 
 if he did not know that Alexander was entitled to keep that 
 note, and did not intend that he should have it ? Why did he 
 say to Alexander, in presence of Wilson and Tyrrell, that it was 
 Alexander's property, and in the letter, either call it Alexander's 
 note, or recognise it as belonging to him, if he did not know
 
 22 
 
 that that was the fact ? Why did he make any effort to have it 
 returned, why not leave it in Rundle's possession, if it was Run- 
 die's property ; if what he says as to the transaction after Run- 
 die left be true ; if what Howard and Alexander say was the 
 agreement be not true ; if he did not make some settlement with 
 Alexander about that note, by which Rundle was not to have it, 
 or use it, to Alexander's prejudice, before its maturity ; if it be 
 not true that Alexander was not to pay that note or anything on 
 it, if there were no profits realized on that work, which was the 
 consideration of the note ? The thing is too clear for argument. 
 Seymour and Rundle obtained that note and $3,000 in money 
 without consideration, by making statements which did not turn 
 out to be true, in payment for property and rights, which they 
 did not have to sell, and of course could not nor did transfer to 
 Alexander. The money they had, or had spent it. The note 
 they had. The wrong had been discovered. Seymour was 
 partner with Alexander in the work. He desired to keep in 
 with him. He acted as fairly at the time, perhaps, as he could. 
 But after the work was done, after all business relations had 
 ceased between him and Alexander, he lent himself to the work 
 of getting more money from Alexander. He called upon him 
 and said, pay a part, pay him something. Finally, seeing that 
 Alexander would not recognize any claim, but would give as a 
 charity, Seymour joined with Rundle in this second attempt to 
 filch money from Alexander, by a suit in trover for the note. 
 
 The attempt to bring in Miss Seymour, to prove the tran- 
 saction of July iSth is really atrocious. Read her direct exami- 
 nation. She was fixed up, stuffed, to say that, she witnessed 
 the transaction of putting that note in the safe. We do not think 
 she came with any wilful purpose, to swear to what she did not 
 think she knew. But we do think, when you read her cross-
 
 2 3 
 
 examination read it from the record, it shows itself worse there 
 than in the abstract but read it, and see what a pitiable aspect 
 she presented before that jury. She. remembered that it was 
 July i8th. " I fix the date because I have an account of it in my 
 diary." 
 
 CROSS-EXAMINATION. 
 
 Says she kept a diary; entered all her transactions daily in 
 it. At page 490 of Record, " I looked at my diary this mprn- 
 " ing. The very words of my memorandum were merely that I 
 " was down to the office that morning the morning of the i8th. 
 " That is the only memorandum." Yet on her direct examina- 
 tion she carried the idea said she had an account of the trans- 
 action in her diary. When she comes to give the words, there 
 is not a syllable about the transaction. Then see how uncertain 
 she is as to the time of the day. Again, on her direct examina- 
 tion, she said she saw a note there; thought it was in reference 
 to Rundle and Alexander. 
 
 Cross-examined, she repeated what she had said; but being 
 pressed, she says she did not read the note, nor hear it read. 
 When asked if she heard it stated what note it was, she said, 
 "Well, I knew what note it was; I had heard my father speak 
 of it." But then she says, I did not hear it read then; I did not 
 hear it stated whose note it was, nor what it was given for. She 
 heard no other conversation between her father, Alexander and 
 Gaytes on the subject, than that her father called Gaytes from 
 the front office into the private room, put the note into an envel- 
 ope, and told Gaytes to put it in the safe. She also says that How- 
 ard was not there. 
 
 7. Now no one but she pretends that Gaytes was called in- 
 to that private office. They were there when Rundle went
 
 2 4 
 
 away. Alexander stepped to the door as Rundle went out, stood 
 and talked there five minutes perhaps. Miss Seymour says Alex- 
 ander was not there when she went in, but came in afterwards. If 
 she were there that morning, she could not have gene through the 
 door to that room without meeting Rundle and Alexander. If she 
 went in while Alexander was out with Rundle, Howard was there; 
 and if she could not see him, it is incredible that she can remem- 
 ber what else took place there. Howard says she was not 
 there. She says the note was given to Gaytes in the small pri- 
 vate room. Howard says it was not. And Alexander and Sey- 
 mour say that the writing on the envelope was done by Gaytes 
 in the general office. There was a drawer cleared for Alexander, 
 the note put in there, and the key given him. When on her di- 
 rect examination she verified her statement by saying, " I have 
 an account of it in my diary," we felt a little, of what General 
 Jackson must have felt a great deal, when he exclaimed in refer- 
 ence to John Quincy Adams' diary : " By the eternal that diary 
 will be the death of me." But when we found that there was 
 not a word in it about this transaction, and that the entry in it, 
 which she called "an account of it," was merely "down to the 
 office," we knew that, that was no account of the transaction, 
 and that she could have found like entries on other days, and 
 that had Alexander fixed the surrender of this note on any other 
 day, her diary (had she not conveniently left it home, after read- 
 ing the entry of July i8th,) would have contained the same ac- 
 count of the transaction, to wit, that she was " down to the of- 
 office." Of course she was not a witness to the transaction, be- 
 cause Howard was an actor it, and he was not present at the 
 one she talks about. The transaction Howard and Alexander, 
 and Seymour had, was in the general office, not in the private 
 room, while she did not go into the general office. At the trans-
 
 25 
 
 action we proved, Alexander talked earnestly, as well as Sey- 
 mour, and there was writing done on the envelope by Seymour's 
 direction. In the one she speaks of, Seymour alone spoke, and 
 all he said was to call Gaytes from the other office, hand the 
 note to him, and tell him to put it into the safe, while Alexander 
 was ' dumb as an oyster." But why waste words, ink and pa- 
 per ? The farce is too thin, the story too transparent. Her ev- 
 idence is not of the weight of a gossamer. 
 
 8. We think perhaps this is a proper place to call attention 
 to what Rundle says about the continuance of the firm of Sey- 
 mour & Ruridle, after the sale to Alexander, and his claim that 
 their office continued to be at 441 Wabash avenue, as well as 
 that the safe belonged to Seymour & Rundle when he took the 
 note out of it. (Abs. p. 8, Rec. pp. 53 to 62.) 
 
 To show how untruthful his statements were, see the articles 
 of dissolution, page 28, abstract, and Alexander's testimony, fol- 
 lowing them, from page 168 to 173, record Howard's testimony 
 abstract 49, record 325, to the end oi his direct examination. 
 They both say Rundle's interest in the office, furniture and safe, 
 were transferred to Alexander. Seymour, at page 66 abstract, 
 record 448-9, claims that it was all transferred to him. So that 
 in any event, Rundle was out, and did not tell the truth on this 
 point. 
 
 Having presented very fully the facts, as we believe the evi- 
 dence establishes them, we proceed to state the exceptions to the 
 rulings of the Court admitting and rejecting evidence. 
 
 Page 8, abstract, Rundle was asked, relative to what Alex- 
 ander had told him as to representations about corn, and what
 
 26 
 
 they found when they went to the work. The Court ruled the 
 question out and we excepted. It was an important fact; the 
 question was competent, and it was error to rule it out. 
 
 77. 
 
 Page u. See our question. The Court ruled it out, and 
 we excepted. Your honors will remember that after Rundle 
 took that note from the safe, Alexander met Seymour on Michi- 
 gan avenue. Seymour says that he went direct from that inter- 
 view to the Tremont House to see Rundle. Alexander and Tyr- 
 rell both say though Seymour denies it that before noon of 
 the same day Seymour came to Alexander's office; told him he 
 had seen Rundle, and thought he could get the note back, and 
 requested Alexander not to prosecute Rundle, till he heard from 
 him again, and promised that, Alexander should hear from him 
 before 4 o'clock that afternoon. About 3 o'clock Alexander re- 
 ceived a note from Seymour on a Tremont Blouse letter-head. 
 Seymour, Alexander, and Tyrrell testify to its contents. If Rundle 
 knew that, that letter was written, and knew the contents, we 
 had a right to prove it to the jury, Rundle was a competent 
 witness to prove it by. It was error to refuse us the right to 
 call out the fact from him. We have a right to assume that he 
 knew, and we had almost said that, he would tell the truth. 
 No matter, the question was proper, the evidence was material, 
 the error is palpable. Had we proved by Rundle that he knew 
 the letter was written by Seymour telling Alexander that he 
 would give him the note, if he saw him before 4 o'clock, if not, 
 he would find it in the safe at 441 Wabash avenue, certainly tro- 
 ver could not have been maintained, for the note.
 
 At the foot of page 13, and top of 14, abstract, we put two 
 questions to Seymour on cross-examination. The Court ruled 
 them out, and we excepted. We had proved Poindle at 441 
 Wabash avenue that morning, and that, conversation passed there 
 between Seymour, Rundle and Alexander, in presence of How- 
 ard. We were clearly entitled to probe it to the bottom ; to get 
 out all that was said, both to contradict Rundle and to get at the 
 exact truth. It was error to exclude the testimony. 
 
 At page 29 of abstract, Alexander had stated that, after the 
 note was put in that drawer in the safe, his father-in-law, who 
 came to Chicago from Springfield, Mass., to die, gave him a let- 
 ter or sealed paper to put in his sale, directing him to open it after 
 he was gone. That letter was in the drawer when Rundle 
 broke it open; and as he took the note, and as the letter was 
 gone, the evidence was strong to convict Rundle of taking 
 the letter also. If he took it and did not return it, it was calcu- 
 lated to show that the intent on Rundle's part was feloniouus 
 when he took that note. It was competent, and, although the 
 witness answered, yet the court, in ruling out the question, ruled 
 out the answer. It was error. 
 
 IV. 
 
 We now state our position as to the facts established by the. 
 evidence. 
 
 i. Seymour was one of the firm of Hopper, Boyle & Co. 
 in the contract with the Philips & Colby Construction Company 
 for building the first forty miles of the Wisconsin Central Rail- 
 road; the date of which, as appears from the assignment from
 
 28 
 
 Seymour & Rundle to Alexander (Abs. p. 33), was Sept. 7, 1871, 
 and in the contract for building the next sixty miles (date of same 
 January 25, 1872), and Rundle had been interested therein from 
 the beginning. 
 
 2. From their connection with the work, as shown by the 
 evidence, Seymour and Rundle both were in a condition to know 
 the state and condition of the work and the affairs of the com- 
 pany, and their property on the work. 
 
 3. Seymouf undertook to negotiate a sale of Rundle's in- 
 terest, which Rundle knew and authorized, and finally consum- 
 mated in person, after the terms of it had been worked up by 
 Seymour. 
 
 4. In the course of the negotiations with Alexander, which 
 resulted in the purchase by Alexander, and sale by both Sey- 
 mour and Rundle to him of Rundle's one-sixth interest in the 
 plant on the work, and the profits which they represented had 
 been earned on the work up to that time, Seymour made state- 
 ments relative to the amount and value of the plant, the amount 
 of profits earned and retained by the construction company, the 
 state of progress of the work, the cost of doing it thus far, and 
 the condition of the sub-contractors on the work. And Rundle 
 himself was present at some of the times, and either participated 
 in or knew what representations were made, and adopted them 
 as his own. 
 
 5. The representations were, that the firm of Hopper, Boyle 
 & Co., had invested $33,000 to $35,000 in plant, which, by use and 
 deterioration, was reduced in value as they valued it, to $18,000 
 
 That they had in construction company's hands 11,000 
 
 That they were sure of a bonus of $30,000 to 35,000 
 
 But they called the retained percentage and bonus $42,000, and
 
 2 9 
 
 with $18,000 makes $60,000, one-sixth of which is $10,000. Fur- 
 ther representations were that, the 85 per cent, of their contract 
 price had paid for the work thus far on the forty miles; that Hop- 
 per, Boyle & Co. owed no debts; $1,000 or $1,500 would cover 
 everything; that the work was nearly all let to sub-contractors, 
 who were all at work actively, doing well and making money at 
 prices Hopper, Boyle & Co. had sub-let to them for: and that, 
 while they were a little behind on this forty miles, which by the. 
 contract was to be finished by July 15, it was in such a state of 
 forwardness that they would have it all done by Aug. 15, when 
 the $11,000 retained percentage and bonus would all be paid over 
 by the construction company. And that the sixty-mile contract 
 was better than the forty miles, as for the same work they were 
 to receive 25 per cent, more than on the forty miles. 
 
 6. Alexander did not go on to the work, nor make any ex- 
 amination further than of these statements made to him; he 
 relied upon their correctness and truthfulness, in determining 
 whether to buy the one-sixth interest, and, believing in their 
 truth, agreed to make the purchase. 
 
 7. As a part of the negotiation, one-fourth of the Barraboo 
 tunnel contract was also to be sold and bought the money which 
 they said Rundle had put into it being $1,500, but on account of 
 the accumulated profits, that was valued at $3,000 and the ar- 
 rangement was that Alexander should pay this $3,000 in money, 
 and the one-sixth of the plant on the Wisconsin Central, $3,000; 
 which he did, and for one-sixth of the retained percentage and 
 bonus, $42,000, gave his note for $7,000, which he did, and which 
 is the note in question. 
 
 8. The $13,000 mentioned in the assignment was made up 
 as above stated, and so understood by all parties, notwithstand-
 
 3 
 
 ing it is called one sum in the assignment which was executed, 
 and is given at 33 abstract. 
 
 9. Not one of these representations made as to existing 
 facts were true. The plant was not worth $18,000, nor one- 
 sixth of it. The items given as constititing it were not in exist- 
 ence. They only had about $3,100 retained percentage in the 
 hands of the construction company, and the bonus obtained in 
 fact was only $15,000, (though the construction company agreed 
 to pay $30,000,) because, the work was not done in the time 
 agreed upon when they agreed to pay the $30,000, and which 
 would have been done, had the work been in the state of for- 
 wardness represented. 85 per cent of contract price had not 
 paid for the work as it went along ; they had drawn on the re- 
 serve percentage, so that, as above stated, all was absorbed but 
 $3,100. The estimate for June was less than the cost of labor 
 of men, without the other expenses, by $2,000 pay rolls being 
 $13,000 and estimates $11,000. The debts of the company over 
 and above pay rolls were $15,846,69, as shown by statement at 
 page 25 abstract, and $40,186,52 actually, as shown by the cor- 
 rect account at page 59 abstract. 
 
 The sub-contractors had all surrendered their jobs to Hop- 
 pes, Boyle & Co., but two, because they could not get pay 
 for the work they had done, could not live on their contracts, 
 and the condition of the work was such as to preclude all hope 
 of completing it by Aug. 15. It in tact was not done till after 
 September 15, and, as Flynn said, the work would ruin any com- 
 pany that undertook to continue it. The amount invested by 
 Seymour & Rundle in the Tunnel Contract was only $2,200 or 
 $2,300 $700 or $800 less than they represented it. 
 
 10. Rundle knew that many if not all these material state-
 
 3 1 
 
 merits were untrue. He certainly knew that the sub-contract- 
 ors had given up their jobs. He knew that Flynn was threaten- 
 ing to leave the work. He knew that their tools, teams, and 
 supplies, were almost worthless. He knew that the work was 
 not self-sustaining at 85 per cent. He knew the work was 
 greatly behind, and could not be completed by i5th of August. 
 He knew, or ought to have known, that the 15 per cent, provi- 
 ded by the contract to be retained by the construction company, 
 had been drawn upon largely. Seymour knew, or ought to have 
 known, the same thing ; and if it be true, as he says, that, he 
 had statements sent to him every month, of liabilities &c., he 
 knew that the company owed more than $1,000 to $1,500. 
 Why even the letter which he produced at page 63 abstract, 
 shows that June 5th the debts were $6,569,33 more than as- 
 sets, and if your honors will examine that statement, and com- 
 pare it with the statements at pages 25 and 59, you will see that, 
 that is nothing like the amount of the actual indebtedness, and still 
 Seymour told Alexander and Howard that the debts were only 
 $1,000 or $1,500. They both knew that, they had not invested 
 $3,000 in the Tunnel contract. 
 
 ii. We wish particularly to call your Honors' attention to 
 the fact, however, that for all the property, plant, and retained 
 percentage, Alexander was paying, on the statement that the 
 company was out of debt ; not that it did not owe more than it 
 had assets. So you see here was an actual debt of $19,364.57, 
 which Seymour knew about when he was assuring Alexander 
 and Howard that they owed nothing a mere trifle, $1,000 or 
 $i,5ooat_the outside which, in transactions of as large magnitude 
 as this, was a mere flea-bite a drop in the ocean. It was so 
 inconsiderable a thing in this magnificent work, so rich in profits 
 and so successful in the past, with such golden harvest promised
 
 3 2 
 
 in the future, as to be passed by with a wag of the head, a 
 shrug of the shoulder, and not to weigh a feather's weight. 
 
 12. At this point we feel it Our duty to remark upon Sey- 
 mour's pretence that, he showed that letter and statement written 
 by Montgomery June 5, 1872, to Alexander and Howard. They 
 both say he did not; that they never saw it until it was presented 
 in court on the trial. The uncertainty of Seymour's memory, 
 and the want of recollection evinced throughout, is sufficient to 
 convince any one that, it was never shown by him. But it is so 
 utterly unreconcilable with the fact that, Alexander made the 
 contract he did, to pay Rundle $13,000, the full value of his in- 
 terest in these contracts, and at the same time knew that, he must 
 pay over $3,000 more, as Rundle's share of these debts. Again, 
 when he produced the statement found at page 25, and claimed that 
 they had misrepresented the amount of the debts, why did not 
 Seymour flaunt this letter in his face, as an answer to the charges 
 of deception, misrepresentation and fraud ? Why did not Run- 
 die, instead of getting mad and running away, meet the charge 
 that he was a knave or a fool, with this letter, and refute Alex- 
 ander's charge that, while they had said the Company was out 
 of debt, its debts were over $15,000, besides the current Pay 
 Rolls for June No man or set of men, were justifiable in find- 
 ing no fraud here. 
 
 13. But suppose we throw the mantle of charity over 
 these men, and, except where the conclusion is inevitable that 
 they knew their statements to be false, say that they did not 
 know that they were untrue; the case is in no way relieved of 
 fraud. They made the assertion ; they did not know whether it 
 were true or false ; but making it, saying the facts were so and 
 so, was saying that they knew, what they said, was true, even 
 though they did not expressly use the words, " we know our
 
 33 
 
 statements to be true." It turned out that their statements were 
 not true. Hence they did not know they were true, and it does 
 not alter the case for them that, they asserted a fact to exist which 
 they did not know did exist, even if they did not know it did not. 
 Before a man makes a material statement to influence another to 
 act, he is bound to know that the fact is as he states it to be. If 
 it be untrue, and the other is injured, it is fraudulent. If it be 
 true, but he who makes the statement does not know it to be 
 true, he is just as much a liar as if it had not been true, because 
 the statement involved both the assertion of its truth, and that 
 he knew it to be true knew it was not untrue. In this case, if 
 you please, Alexander has been defrauded of his money and 
 note, by statements made, which in lact were not true at the 
 time they were made, and which Rundle and Seymour did not 
 know were true, although they did not know they were untrue, 
 did not know either that they were true or untrue whether they 
 were true or false but made them without inquiring as to their 
 truth, when the means were at hand to learn their truth or falsity, 
 and when they knew Alexander and Howard were relying upon 
 the truth of their statements, and their knowledge of their truth. 
 
 14. But we must urge here that they must have known, 
 did know, that some things they stated were not true. Hence, 
 fahus in uno falsus in omnibus, is the rule here. And if it be 
 said that, the statements were made by Seymour, and that he 
 did not know they were not true, and that Rundle, though he 
 may have known that some of the facts stated by Seymour were 
 not true, said nothing ; we answer Rundle cannot enjoy the ben- 
 efit of a false statement made by Seymour in his behalf, Sey- 
 mour not knowing but it was true, while as a fact it was known 
 to Rundle to be false.
 
 15. But to return to our enumeration of facts proved, we 
 say it is proved that, on the i8th day of June, Rundle, Seymour, 
 Alexander, and Howard, were at 441 Wabash Avenue, and 
 were talking about these false representations. From the facts 
 above established, Alexander was entitled to have the note re- 
 turned to him. He was demanding its return. We say that, 
 on that day, before Rundle left, Seymour had said to Alexander, 
 that he ought not to pay that note, should not. We say also 
 that Rundle was proposing a compromise. Alexander was 
 charging fraud. After Rundle had heard Seymour's oft repeat- 
 ed statement, he got up mad, gave the note to Seymour to settle 
 the matter with Alexander, as he had a mind to, and went away. 
 Rundle's own testimony proves it, (read page 6 Aabstract,) 
 Seymour's proves it more than Rundle's, because he says Run- 
 die told him to " do as he was a mind to with it." Howard and 
 Alexander both expressly say he told Seymour that any settle- 
 ment he made with Alexander, would be satisfactory to him ; 
 and they say he told Seymour he had as much interest in the 
 note as he had himself. 
 
 16; Then we say further that, the proof is conclusive, that, 
 that note was surrended to Alexander by Seymour. Alexander 
 and Howard say it was, and give the language used by Sey- 
 mour. Seymour contradicts them, as to the language, at the 
 instant of time, but still he put the note in the safe, in a drawer 
 set apart for Alexander of which he carried the key, that- was 
 given to him then and there. The least that can be said is, that 
 the arrangment made there, that day, was that Rundle should 
 not have posession ot the note ; should not take it from the safe. 
 Seymour claims that he was the possessor of the note and en- 
 titled to hold it, and never gave Rundle permission to have pos- 
 session of it. If Seymour was custodian, he held it for Alexan-
 
 35 
 
 der's benefit, so that if no profits came from that work, he 
 should pay nothing. Hence we say that it was either in Alex- 
 ander's possession, put there by Seymour's direction, or in Sey- 
 mour's for Alexanders protection, with no right in Rundle to its 
 possession, nor to any payment on account of it unless there 
 should turn out to be earned profits. And we say that it was 
 in fact in Alexander's possession, his note, and his liability to 
 pay any part of the $70x30, was contingent upon there being 
 profits. There was no dispute about the fact being proven that 
 Rundle was not entitled to its possession. 
 
 i . 
 
 17. Seymour's statement made to Alexander, Wilson and 
 Tyrrell, and the letter to Alexander corroborate the proof, and 
 clinch the fact as being within his knowledge. They also throw 
 such discredit on Seymour's testimony as to render it utterly un- 
 worthy of belief. He is utterly impeached on the question of 
 ownership of that note. 
 
 18. Rundle had never asked Seymour for\ the note from 
 July i8th to the time he took it from the drawer. He knew it 
 was in Alexander's drawer. He knew Alexander was away 
 had gone to bury his dead out of his sight. He knew that 
 Gaytes, the bookkeeper, was away; and, taking advantage of 
 all these these things, and Seymour's illness, he made the raid on 
 that office in possession of the colored boy, procured a locksmith, 
 picked the lock or opened it with false keys, and stole that note 
 and the other private papers belonging -to Alexander. Rundle 
 claimed to have a right to be in that office to. be part owner of 
 the safe. But the articles of dissolution contradict him. How- 
 ard and Alexander swear that Rundle's interest in the safe went 
 to Alexander. Seymour claims it went to him. Rundle gave 
 
 his key to the office to Alexander, and thereafter the office was 
 
 . ... ...
 
 36 
 
 that of M. T. Seymour & Co. They all contradict Rundle in 
 his false claim to any ownership in that safe, or right to occupy 
 that office. 
 
 19. Alexander applied to Seymour for the note. When 
 told that Rundle had taken it, his first exclamation was, he has 
 done very wrong. He had no more right to take that note than 
 to take one of your horses. That meant, he had no right to the 
 possession of the note. Seymour obtained it from Rundle, and 
 proposed to deliver it to Alexander before 4 o'clock of that day ; 
 but, lest he might not see him, told him where he could find it 
 as much as told him to go there and take it if he did not deli- 
 ver it in person. 
 
 20. Now, July 1 8, Rundle put that note into Seymour's 
 hands, to settle the matter relative to that trade and the note, with 
 Alexander, as he was a mind. The settlement was, to say the 
 least, as Seymour, Alexander and Howard all agree, that Rundle 
 should not have the possession of the note; and that whether 
 Alexander ever should pay any of the $7,000, depended upon 
 the contingency named. That all agree upon. 
 
 21. Rundle could not acquire any right to the possession 
 of that note after that settlement. When he took it from that 
 drawer it was a criminal taking. It gave him no right to the 
 possession, nor to dictate any terms to Seymour, upon which he 
 should receive it from him. 
 
 22. Rundle did deliver the note to Seymour. Seymour 
 then and there 1 wrote to Alexander that he had the note, or his. 
 note, and if he did not see him to give it to him before 4 o'clock, 
 he would find it in the safe. That was permission to Alexander 
 to take it. It was a recognition of Alexander's right to it a 
 right which, by the whole evidence is undisputed and indisput-
 
 37 
 
 able. This one act of Seymour, in getting that note from Run- 
 die, and immediately writing that letter, is conclusive, and gives 
 character to Seymour's testimony. 
 
 23. We say there is no evidence against Alexander's right 
 to the possession of that note, except the lame, impotent and false 
 statements of Rundle; and upon the facts, the action cannot be 
 maintained; and against all the other facts, it cannot be that 
 the verdict can stand on Rundle's evidence alone. 
 
 ir s* n TII /: 
 
 Haycraft w. Davis, 49 111., 456. 
 
 R. R. Co, vs. Herring, 57 111., 62. 
 
 77. , /^ TT J 7 ' O Til 
 
 Express Co. vs. Hutching, 58 111., 44. 
 
 D 7 r^l Til 
 
 Peaslee vs. Glass, 61 111., 94. 
 
 
 
 i 
 
 24. We think we have demonstrated that the note was ob- 
 tained by fraud, from Alexander, and that in an, action on the 
 note, Rundle could not recover anything; and that, therefore, he 
 
 was not entitled to a verdict in this case. 
 
 . 
 
 But, if your Honors shall be of the opinion that, the evidence 
 does not show fraud, but merely shows that Seymour was mis- 
 taken, as to the matters stated by him to Alexander; and that 
 Rundle was also mistaken as to his statements; then we say that, 
 Rundle could recover nothing, because the money paid by Alex- 
 ander was more than the interest in the contracts sold to him, 
 and the consideration for this note has failed. They did not have 
 the thing to sell, which they represented they did have, and of 
 course could not nor did give anything for the note. There is 
 no dispute at all, that instead of profit, there was loss, fully equal 
 to and even more than the $3,100 retained percentage and the $30- 
 ooo bonus which the construction company agreed to give them, 
 but of which they never paid but 15,000.
 
 VI. 
 
 We will now discuss our exceptions to the instructions given 
 for plaintiff. 
 
 1. We claim that, under the evidence, there was no ques- 
 tion of fact, to submit to the jury, as to the right of Alexander 
 to the possession of that note. The evidence is uncontradicted 
 that, Seymour, with power to do so, had placed that note in Al- 
 exander's hands, with power to hold it, at least, till Seymour 
 should demand it which he never did, Rundle had no right to 
 its possession. Hence we claim that the first instruction is erro- 
 neous submitting to the jury to find whether the " note came into 
 the possession of the defendant without right" 
 
 2. The second instruction is erroneous, because, while it 
 admits that Seymour received the note with authority to do what 
 he was a mind to, yet it withholds from the jury the question, 
 whether in the settlement or arrangement Seymour made with 
 Alexander, Rundle was to be excluded from the possession of 
 that note; and it assumes that Rundle had the right to take that 
 note from the safe, and withhold it from Seymour and Alexan- 
 der, when the fact and the law is that, when Seymour made the 
 arrangement he did, with Alexander, it placed it out of Rundle's 
 power to take that note from the safe, to the injury or prejudice 
 of Alexander; and, as we have said before, neither Rundle nor 
 Seymour could change the conditions under which it was to re- 
 main in that safe, as agreed between Seymour and Alexander. 
 Again, it submits the question of fact to the jury to find whether 
 Alexander took the note from the safe by direction of Seymour, 
 when the letter proved settled the question of fact, and was con- 
 clusive that Seymour did deliver it to Alexander. The court 
 must construe the written evidence, not the jury.
 
 39 
 
 3. The third instruction is erroneous, because it contains 
 but one element of evidence of the fraud practiced on Alexander. 
 The representations proved were more than as to value; they 
 were as to the existence of actual property, and then there were 
 suppressions of material facts. 
 
 4. The fourth instruction is erroneous, because there is no 
 evidence in the case, either that Alexander did not rely upon the 
 statements made, or that he knew they were false. All the evi- 
 dence tends to prove he did rely upon them, believed they were 
 true, and had no reason to suppose they were not. 
 
 5. The sixth instruction is erroneous, because it tells the 
 jury that, unless Seymour and Rundle knew, or had good reason 
 to believe, their statements false when, as we have demon- 
 strated, if they made statements for the purpose of inducing Al- 
 exander to act, which were untrue, but which they did not know 
 were true knew nothing about; they were false and fraudulent, 
 because the statement of the facts included a statement that they 
 knew about them. 
 
 If one swear to the existence of a fact, which he neither 
 knows does or does not exist has no knowledge of it is per- 
 jury; and it is a lie on his part, if it be not perjury, even though 
 it turn out to exist, for the reason stated, that the assertion of its 
 existence includes the statement of knowledge of it. 
 
 6. The seventh instruction is erroneous: Seymour's con- 
 nection with that note, on his own showing, even, was such as 
 that his declarations were binding on Rundle, certainly as late as 
 September 14, 1872, when Alexander was seeking the note and 
 Seymour was returning it to him.
 
 4 o 
 
 VII. 
 
 Refusal of the Court to give instructions asked by the de- 
 fendant was erroneous. 
 
 1. The evidence in whatever way viewed, did establish 
 that, the note was part of the consideration for Rundle's interest 
 in the contracts mentioned in the assignment. That Alexander, 
 Rundle, and Seymour, had a controversy in relation to the con- 
 sideration of the note, and whether it should be surrendered to 
 Alexander. That Rundle did deliver the note to Seymour, be- 
 cause of that controversy, as he says, " because I -would just as 
 soon he "would hold the note and settle the matter as myself. To 
 settle the matter in regard to that ; to make it satisfactory to Alex- 
 ander" As Seymour says, to " take this and do as you are a 
 mind to" or, " as you please." As Howard and Alexander say, 
 to " do as you are a mind to, and whatever settlement you make 
 with Alexander, will be satisfactory to me. That Seymour did 
 put the note in the drawer, not to be taken out, as he says, " ex- 
 cept upon his orders" as Howard and Alexander say, " to be sub- 
 ject to Alexander's control. This fixed the rights of the parties. 
 
 Rundle stole it out, and returned it to Seymour, who returned it 
 to the safe, and by that letter, as the Court was bound to con- 
 strue the language, as given by Alexander, Tyrrell, and Seymour, 
 Seymour directed Alexander to go there and take possession of 
 it, as he did not see him to give it to him in person. In pursuance 
 of the directions in that letter, Alexander took it. 
 
 2. These matters of evidence, being undisputed, the Court 
 was bound to construe the language as, giving power to Sey- 
 mour to do as he did, and therefore Alexander did not get pos- 
 session of the note by any wrongful act, but by virtue of ar-
 
 4 1 
 
 rangement between him and Seymour, who had power to make 
 it, and to deliver the note into Alexander's custody. 
 
 
 
 3. Rundle, by taking it from the safe, could not, nor did 
 determine Seymour's control over the note, nor Alexander's 
 right to keep it from Rundle's hands, as a protection against a 
 transfer of it to an innocent party before maturity. 
 
 4. The first, second, third, and fifth instruction go upon the 
 ground ; that inasmuch as Alexander came rightfully into posses- 
 sion of the note, under the circumstances detailed in the evi- 
 dence, Rundle had no right to demand the possession of it, if 
 Alexander had reasonable grounds to contest his liability to pay 
 the whole, or any considerable portion of the money named in 
 it. While it might be that, were the action on the promise, 
 Rundle might recover the whole amount, yet he could fiot main- 
 tain trover for the note, but must wait till its maturity, and bring 
 his action on the contract. 
 
 We insist that such is the law of this case, and that these 
 instructions ought to have been given. 
 
 Canfield vs. Munger, 12 J., 347. 
 Graham vs. Warner, 3 Dana, 146. 
 Pierce vs. Gibson, 9 Vt., 216. 
 
 That trover will not be by the maker of a note which has 
 been paid. 
 
 See Todd vs. Ha-wley, 3 Johns, 432. 
 Kingman vs. Pierce, 17 Mass., 247. 
 flames vs. Parkman, 20 Pick., 90. 
 
 5. The fourth instruction asked by us was clearly proper 
 and ought to have been given If the note was deposited in
 
 4 2 
 
 that safe in the manner detailed by Seymour, in pursuance 
 of the mutual agreement oi the three, and under the agreement 
 that, the payment of it should be contingent upon the success of 
 the work, under the Hopper, Boyle & Co., contract, as that 
 should appear, when the work was completed, and all accounts 
 and liabilities growing out of it settled and discharged ; it is ob- 
 vious that, such agreement was for the benefit and protection of 
 Alexander. It is equally manifest that, such agreement deprived 
 Rundle of any right to the possession of that note in the mean 
 time. We think we know, that, there is no question that, the 
 key to that drawer was given to Alexander, and the note placed 
 under his control and in his possession. But however that may 
 be, the propositions contained in the instruction might arise upon 
 the evidence, and the agreement, as to the payment of the note, 
 being made contingent upon success in the work, Rundle had no 
 right to the possession of it. There is no dispute that he had 
 violated the agreement under which the note was deposited in 
 the safe. And it was competent and right for Seymour and Al- 
 exander, after Rundle had thus invaded the safe and drawer, 
 and after he had returned the note to Seymour, to provide other 
 safe place for keeping it. Therefore since Seymour told Alex- 
 ander where to get the note if he did not see him to give it to 
 him, and Alexander took it from the safe, upon the implied di- 
 rection contained in Seymour's letter to do so, such taking by 
 Alexander was not wrongful. And since Seymour had acquiesced 
 in Alexander's possession, and indeed Rundle too, up to a short 
 time before this suit was commenced, the jury ought to have been 
 allowed, when we requested it, to pass upon the question of fact 
 as to the agreement. And since it was clear from the evidence 
 that, the contingency, supposed, had not happened; that under 
 the supposed agreement, the contingencies never can happen, and
 
 43 
 
 Rundle could never be entitled to payment of that note; that 
 there was no liability, on Alexander's part to pay it; that Run- 
 die could not have recovered anything from Alexander on ac- 
 count of the note, the instruction ought to have been given. The 
 jury ought to have been directed to pass upon the questions of 
 fact embraced in that instruction. If Rundle could not maintain 
 an action on the note, he was not entitled to the possession of it, 
 but Alexander was. If, for any cause, Alexander was discharged 
 from liability on the note, having possession of it under the cir- 
 cumstances detailed in the evidence, he was entitled to retain it. 
 If the agreement supposed in the instruction had been made, and 
 there had not been the success on the work, upon which Alex- 
 ander was to pay, then he was discharged, and if discharged, he, 
 not Rundle, was entitled to the possession of the note. 
 
 We asked other instructions, which were given r but none 
 which embodied the propositions contained in this one. We had 
 the right to have the jury pass upon these precise questions. If 
 they had been submitted to them, the verdict might have been 
 different. 
 
 6. The Court refused to give our ninth instruction as we 
 asked it. We claim, and in our argument on the evidence have 
 demonstrated that, a party who makes statements, to influence 
 another in his actions, which are not true, are false statements, 
 even though the party did not know whether they were true or 
 false, if he he did not know they were true when he made them. 
 It is fraudulent for one to make statements, which are not true, 
 when he has no knowledge whether they are true or false, and 
 if another acts upon them, and damage ensues, the action for the 
 deceit can be maintained. Carry the thought one step farther. 
 If I assert that a fact is so and so, he to whom I make the asser-
 
 44 
 
 tion, assumes, and with warrant, that I know what I assert, to 
 be true. If I have no knowledge on the subject, or if I am re- 
 peating what others have told me, I ought to say so ; my duty 
 is to disclose that fact ; it is a material ingredient in the state- 
 ment, because to assert a fact, is to assert that I know what I 
 assert ; and my knowledge is material ; hence, if I do not know, 
 or am only giving information derived from others, having no 
 personal knowledge, I suppress a material fact, to wit, that I 
 do not know that to be true which I say is true, or that I am only 
 repeating what I have heard told. A witness who testifies to a 
 fact, speaks of his own knowledge, and his testimony is compe- 
 tent, but if he say I only know what I have been told, it is not 
 competent, and he would not be allowed to say anything. So 
 we say that, the Court ought to have given this instruction, as 
 we asked it, and it was error to alter it by striking out the words 
 "or -which they did not know to be trm." 
 
 For authorities that, an action in case lies for a false affirm- 
 ation, made with intent to defraud, and damage ensues, and that 
 withholding the knowledge of a material fact, suppressing the 
 truth with like intent, renders a party equally liable. 
 
 See Pasley vs. Freeman, i Term, 51. 
 
 Eyre vs. Dunsford, i East., 318. 
 
 Haines vs. Alexander, 5 Bos. & Pull., 241. 
 
 Upton vs. Vail, 6 Johns, 182. 
 Ward vs. Center, 3 id. 271. 
 
 Tapp vs. Lee, 3 Bos. & Pull., 367. 
 
 Corbitt vs. Brown, 8 Bing. 35. 
 
 Allen vs. Addington, 7 Wen., 9. 
 
 Addington vs. Allen, n Wen., 374. 
 
 Boyds, Exrs., vs. Brown, 6 Bar., 301. 
 
 Baker vs. Walker, 2 Harris Pa., 139.
 
 45 
 
 That withholding material facts, is not only evidence of 
 falsehood, but of fraudulent intent. 
 
 See Eyre vs. Dunsford, i East., 318. 
 Adding/ton vs. Allen, n Wen., 371. 
 Boyds, Exrs., vs. Brown, 6 Bar., 31. 
 
 7. The eleventh instruction asked by us should have been 
 given. It is similar to the fourth, and we have given our views as 
 to that fully. There is this further reason why this instruction 
 ought to have been given. This supposes, (and there is evidence 
 to support it,) that, after Alexander's claim that he had been de- 
 ceived, and in view of all the facts proved by the evidence, it 
 was agreed that Seymour should hold the note, for Alexander's 
 protection, so that Rundle could not assign it before maturity, 
 and thereby cut oft' any defense Alexander might have to it, after 
 completing the work, and ascertaining whether the result should 
 be loss or profit, and that it should not be delivered to any one 
 except upon Seymour's direction. If such an agreement had 
 been made, it would have been binding and valid, and Rundle 
 would not be entitled to the possession of the note, unless Sey- 
 mour directed it to be given to him. Not having the right to 
 the possession, he could not maintain trover for it, nor any ac- 
 tion till it matured. In view of the fact that, Seymour not only 
 had not directed the note to be delivered to Rundle, but when he 
 stole it out ot the safe, where Seymour put it, he at once com- 
 pelled a return of it, and then directed Alexander to go to the 
 safe and get it, the jury ought to have been directed to inquire 
 into this suggestion in this instruction ; and we believe they 
 might have found a verdict for us had they been so directed.
 
 4 6 
 . 
 
 The court erred in refusing a new trial. We have discussed 
 all the material points in our motion heretofore in this brief ex- 
 cept the VI and think we have demonstrated beyond dispute 
 or refutation that, we ought to have been accorded a new trial. 
 We do not think there is any ground for sustaining the verdict 
 on the evidence ; and we do think the court greatly erred in giv- 
 ing and refusing instructions, in the particulars we have com- 
 plained of. 
 
 We will add, as to the Vlth point in our motion, that, the 
 fact that the verdict was for only about half the note, manifests 
 that, the jury utterly disregarded the facts and the law. Of 
 course we say no verdict should have been given against us. 
 We think that, had the jury regarded at all the instructions given 
 by the court upon our request, no verdict could have been given 
 against us. It is impossible for twelve men, acting honestly and 
 fairly, without prejudice or passion, to find that Alexander was 
 guilty of converting that note to his own use, or that he did not 
 have good right to retain it. 
 
 But if Rundle was entitled to recover $3,757.39, he was en 
 titled to recover $7,000 and interest from the 2 4 th day of June, 
 1873. That man does not live who can, by mathematical calcu- 
 lation, cypher that verdict out of the facts of the case. The 
 data does not exist from which that result follows. It was a 
 gambling verdict, given in utter disregard of law or facts; the 
 result of passskm and prejudice. If you discard Rundle's testi- 
 mony, there is no evidence tending to prove his case. Seymour, 
 Howard and Alexander contradict him on the real material 
 points; and the bare reading of his testimony convinces the mind 
 that he is utterly unreliable, utterly unworthy of belief.
 
 47 
 
 This court has decided, in this class of cases, that a verdict 
 which rests upon the testimony of a plaintiff, shaken and over- 
 whelmed as Rundle's is in this case, cannot stand. See 
 
 Haycraft vs. Davis, 49 111., 436. 
 
 Jf. 7P. Co. vs. Herring, 57 111., 62. 
 
 Express Co. vs. Hvtchins, 58 111., 44. 
 
 Peaslee vs. Glass, 61 111., 91. 
 
 American Merchants Express Co. (Barrett & Fargo} 
 vs. Spades, and 
 
 Palmer vs. Richardson, M. S. of Sept., Tenn., 1873. 
 
 SLEEPER & WHITON, 
 ATTORNEYS OF APPELLANT. 
 
 . 
 - 

 
 KPI
 
 No.. AGENDA No. 
 
 STATE OF ILLINOIS, 
 
 rente (jsoniif, 
 
 Northern Grand Division, 
 
 ' 
 
 Term. A. D. 1874. 
 
 APPEAL FROM COOK. 
 
 ELIJAH S. ALEXANDER, 
 
 vs. 
 
 DAVID F. RUNDLE, 
 
 Appellant, 
 Appellee. 
 
 UBtrief ctnb 
 
 Filed 
 
 1874. 
 
 CLERK. 
 
 SLEEPER A WHITON, 
 
 FOR APPELLANT. 
 
 K. B. STILLMAN & Co., Printers, 145 Clark St.