Statement of the case. for fraud and deceit. Under circumstances like these, the person with whom the exchange is sought may rely upon the statements as being true, without being guilty of such negligence as to preclude a recovery by him for the fraud practiced on him. It might be different where the property is situated conveniently near, so as to permit an examination to be readily made. 2. AMENDMENTS AND JEOFAILS-defect in pleading cured after verdict. In an action for fraud and deceit in the exchange of land with the plaintiff for a leasehold interest in a building, and the goods therein, if the declaration fails to aver the assignment of the lease by the plaintiff, which was sold with the stock of goods, it will be too late to object to this defect in the pleading after trial and judgment. 3. PRACTICE-time to object that evidence is not admissible under the pleadings. If a declaration contains no averment to authorize the admission of evidence to prove a particular fact, objection should be specifically made to the introduction of such evidence at the time it is offered, so that the objection may be obviated by an amendment of the declaration. If not so made the objection will be deemed to have been waived. 4. SAME-directing a nonsuit. Where there is evidence tending to prove the averments of the declaration put in issue, a motion for a nonsuit will be properly refused. Where the propositions in 5. INSTRUCTIONS-whether assuming facts. an instruction are all made to rest upon what the jury shall believe from the evidence, or when it states a hypothetical case, which, if the jury believe, from the evidence, existed, they may consider, it will not be liable to the objection it assumes there is evidence of the fact, or indulges in presumptions that there is evidence to prove such propositions. 6. SAME-whether to be construed as limiting the proof required. In an action on the case for fraud and deceit in the exchange of property, the defendant asked the court to instruct the jury that the plaintiff was not enti tled to recover unless they should find, from the evidence, that the defendant made the representations alleged in the declaration. The court gave the instruction, but added thereto, "or some material part thereof:" Held, that as modified it did not mean that the plaintiff might recover if he proved some of the material representations alleged, but that he must prove all that were material of such representations, which, strictly speaking, is the law. APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. The declaration in this suit is in case, to which the general issue was pleaded. The action was brought by William Pigott, against Ernest W. Ladd, to recover for deceit and fraud prac Brief for the Appellant. ticed by defendant in the sale and exchange of property. On the trial in the Superior Court plaintiff recovered a judgment for $1250, against the defendant, which judgment was afterwards affirmed in the Appellate Court for the First District. Mr. E. K. SMITH, for the appellant: False representations as to the condition, situation and value of real estate are not actionable, unless purchaser has been fraudulently induced to forbear inquiry, and then the means must be stated in the declaration. Brown v. Bledsoe, 1 Idaho, 76; Crown v. Carriger, 66 Ala. 590. The representations should be stated in substance, their falsity averred, and that they were made with intent to deceive the plaintiff, and induce him to make the trade or purchase in question, and that they did induce such trade. Morgan, 51 Barb. 116. Barber v. In an action for deceit, a scienter is necessary to be alleged and proved. Moore v. Noble, 53 Barb. 425; 36 How. Pr. 385; Homer v. Fellows, 1 Doug. 51; Terrell v. Bennett, 18 Ga. 404; Woothan v. Callahan, 26 id. 366; 32 id. 382; Hepper v. Lisk, 1 Ind. 176; Gaffing v. Newell, 9 id. 572; Holmes v. Clark, 10 Iowa, 423; Courtney v. Carr, 11 id. 295; Hallam v. Tidhunter, 24 id. 166; Pattygrew v. Chellis, 41 N. H. 95; Taylor v. Frost, 49 Miss. 328; Morton v. Scull, 23 Ark. 289; Young v. Scovell, 8 Johns. 23. The false representations must not only be calculated to deceive, but they must be made with intent to deceive. Stafford v. Newsom, 9 Ired. L. 507; Munro v. Garidner, 3 Brev. 31; Gibbs v. Odell, 2 Coldw. 132; Breed v. Clark, 55 Vt. 577. The intent must be proven. Micon v. Montgomery Bank, 104 U. S. 530; Lewiston Bank v. Dwelley, 72 Me. 223; North River Bank v. Schumann, 63 How. Pr. 476. In actions for fraudulent representations, which defendant is alleged to have known to be false, such knowledge is an essential ingredient, and must be proved. Merwin v. Arbuckle, Brief for the Appellee. 81 Ill. 502; Bartholomew v. Fort, 4 Blackf. 293; Massie v. Crawford, 3 T. B. Mon. 218; Tipton v. Triplett, 1 Metc. 570; McLoud v. Tutt, 2 Miss. 288; Ross v. Mather, 47 Barb. 582; Vanleer v. Earle, 26 Pa. St. 277. Representations of value, quality, situation and excellency, made by the owner, pending negotiations, are mere matters of opinion, for which no action will lie. Schram v. O'Connor, 98 Ill. 539; Bantin v. Palmer, 47 id. 99; Miller v. Craig, 36 id. 11; Vernon v. Keyes, 12 East, 632; Hartman v. Flaherty, 80 Ind. 472; Saunders v. Halterman, 2 Ired. L. 32; Lyttle 'v. Bird, 3 Jones' L. 222; Crown v. Corriger, 66 Ala. 590. Statements of this kind do not relieve the purchaser from the responsibility of investigation. Noetling v. Wright, 72 Ill. 390; Kerr on Fraud, 84. The law will not assist him unless deceit has been practiced against which ordinary care could not protect, (VanHorn v. Keenan, 28 Ill. 448,) and there must be some means used to deceive or circumvent. Railway Co. v. Rice, 85 Ill. 406; Fauntleroy v. Wilcox, 80 id. 481; Walker v. Hough, 59 id. 375; Sims v. Klein, Breese, 302. The rule of law in transactions between strangers is caveat emptor. If the purchaser has equal means of information, and may rely on his own judgment, founded on actual examination, an action will not lie for misrepresentations. Hill v. Bush, 19 Ark. 522; Bell v. Henderson, 7 Miss. 311; Strong v. Peters, 2 Root, 93. When a purchaser, with full means of knowledge within his reach, relies upon his own judgment, he can not recover. Post v. Williams, 6 Ind. 219; Veasey v. Dotin, 3 Allen, 380. Messrs. MONROE & TEWKESBURY, for the appellee, discussed the evidence at some length, to show that it sustained the declaration and the verdict of the jury, and also examined the instructions objected to, insisting that they properly stated the law of the case. Opinion of the Court. Mr. JUSTICE SCOTT delivered the opinion of the Court: As this case comes before this court on appeal from the Appellate Court, of course no controverted questions of fact can be considered. It is objected the evidence does not sustain the case as stated in the declaration, and for that reason the motion for a non-suit should have been sustained. It is seen, on looking into the record, there is evidence tending to sustain the averments of the declaration, and that is sufficient to sustain the judgment, since, under the statute, the finding of the trial and Appellate courts precluded any inquiry as to the weight of the evidence. That would be to investigate controverted questions of fact, which is not allowable. The representations made by defendant as to the property situated in Kansas, which he was about to exchange with plaintiff, were much more than mere expressions of opinion as to its value and desirableness. Falsely stating the quantity of land contained in a certain tract, and the size and character of the improvements situated thereon, is quite a different thing from expressing a mere opinion concerning them. That is what the evidence in this case tends to show was the character of the representations made by defendant to plaintiff which are alleged to be false. Assuming the representations were false, as must be done, there is quite enough in the evidence to show the guilty knowledge on the part of defendant. There was, therefore, no ground for granting a non-suit. It is said it is an elementary principle the purchaser of real estate can not rely on the mere statement of the vendor, and relieve himself in that way from the responsibility of an investigation. Under some circumstances, no doubt, the rule insisted upon should control; but in this case the land defendant was about to convey to plaintiff was situated in another State, many hundred miles away, and it would be unreasonable to apply the rule with any degree of strictness. Defend Opinion of the Court. ant well knew it was not practicable for plaintiff to examine the property without subjecting himself to considerable expense and travel, and under the circumstances he was guilty of no negligence in relying on the statements of defendant as to the quantity of the land to be conveyed to him, the relative situation of the property, and the size and character of the improvements upon it. Had the property been conveniently situated, no doubt the omission to make the usual investigations might have been attributed to plaintiff as negligence, against which the law would not relieve him. It was distinctly told defendant by plaintiff that if the property was as he represented it to be, the trade would be consummated, as was done, and relying on the truth of such representations, as plaintiff might reasonably do, he was greatly overreached in the transaction. It is insisted the declaration is not sufficient, because it does not aver the assignment of the lease of the building, which was sold with the stock of goods. At most, the objection taken rests on a defective pleading, which, at common law and under our statute, is aided by verdict. (Barnes v. Brookman, 107 Ill. 317; 1 Chitty's Pleading, 14th Am. ed. 673.) The rule on this subject, as stated by Chitty in his work cited, is, "that where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict." That is precisely the case here, and the doctrine stated must control. It is averred in the declaration the lease was to be assigned, and proof was, in fact, made of the assigning of the lease,-hence the ver dict on the evidence will be regarded as aiding the defective |