Opinion of the Court.

Appellant next urges that there was no evidence to sustain the verdict.

The contract provided that the material used and the work done should be paid for upon the certificate of the superintendent, who was selected by the parties and was named in the written agreement. Stone was to be furnished and the work completed to the satisfaction of the superintendent.

The kind of stone contracted for was used, and there is no complaint of the character of the work. There was some discoloration of the stone after it was placed in the building, and for this reason only the superintendent refused to give a certificate for the amount sued for.

There is evidence in the record that the contractor bid with reference to the identical stone used, and that it was recommended by the superintendent. He had a sample of it in his office at the time of the contract, and had also given certificates for more than half of the contract price, as the work progressed.

One of the witnesses testified that there were fine particles of iron in the stone, which caused it to rust, and that they could be discovered only by means of a microscope.

The provision in the contract in regard to the stone is as follows: "The contractor must furnish a first rate quality of stone, in every particular sound, and of uniform color for the light colored Cleveland sand stone, or the Columbia stone.” The Columbia stone was used. Its soundness and quality are not questioned. The contractor based his bid upon its use, and the superintendent not only recommended it, but had used it in another building during the previous year.

The refusal to give the certificate, under the circumstances, was bad faith in the superintendent. The contractor had fully complied, and was entitled to the value of his materials and labor, according to the price agreed upon.

The modifications of appellant's instructions were proper. They substantially informed the jury that the superintendent must act in good faith in his relations to the parties, and tha

Syllabus.

if he refused to deliver a certificate, in bad faith and fraudulently, then the contractor must recover upon performance.

Performance by him, as well as the fraudulent conduct of the superintendent, were fairly submitted to the jury, accompanied with proper instructions. They have determined these matters from the evidence, and we shall not disturb the finding. The superintendent should have exercised his power with reasonable discretion, and not capriciously.

If he acted fraudulently, and ought to have been satisfied with the work and material, and so the jury have found, and rightly, then the judgment should not be reversed. Baker v. Jones, 2 Car. & Kir. 742; Mills v. Weeks, 21 Ill. 561; McAuley v. Carter, 22 Ill. 53.

The judgment is affirmed.

Judgment affirmed.

THOMAS J. VENNUM

v.

HIRAM VENNUM.

BILL IN EQUITY-proofs. Where a bill in equity is framed on the theory that there was fraud entitling the complainant to relief, and the proof fails, complainant can not shift his ground and have relief on other grounds upon which the bill does not proceed.

APPEAL from the Circuit Court of Iroquois county; the Hon. CHARLES H. WOOD, Judge, presiding.

Messrs. BLADES & KAY, for the appellant.

Messrs. ROLF, DOYLE & MCCULLOCH, for the appellee.

Opinion of the Court.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in equity, brought by the appellant against the appellee, setting forth that, at the February term, 1868, of the Iroquois circuit court, a judgment was rendered in favor of John White for the use of appellant, against Henry J. Fry, for the sum of $1344 damages and $20.80 costs; that after the finding of the verdict, and before the rendition of the judgment, Fry sold and disposed of all his property subject to execution to prevent appellant from obtaining satisfaction of his judgment; that Fry is wholly insolvent and has no property out of which satisfaction of the judgment can be had.

The bill further states that, at the November term of said court, a judgment was rendered against the complainant for the sum of $422.80 damages, and costs of suit, in favor of the said Fry for the use of Hiram Vennum; that execution had been issued upon the same and levied on complainant's property.

The bill charges that the last mentioned judgment is the property of said Fry, and being collected for his benefit; that said Hiram Vennum does not own the same, but is colluding with Fry to wrong the complainant. The bill prays that the collection of the last named judgment may be enjoined, and that it be set off and be made to apply as a credit on the first mentioned judgment of the complainant against the said Henry J. Fry.

We have carefully examined the proofs in this case, and find that they fail to sustain the allegations of the bill.

They show that the account on which the judgment in favor of Fry for the use of Hiram Vennum was rendered, was sold and assigned by the former to the latter towards payment of a bona fide indebtedness from Fry to Hiram Vennum for borrowed money; that Fry has no real interest in the judgment, and that the whole beneficial interest in it belongs to Hiram Vennum.

Opinion of the Court.

Neither the sale and assignment of the account, nor the obtention of the judgment for the use of Hiram Vennum, appear to be fraudulent as to the appellant, Thomas J. Ven

num.

The point is made in the argument that the insolvency of one of the parties is a sufficient ground for the court to exercise its equitable jurisdiction in allowing an equitable set-off; that there existed this equitable right of set-off against Fry at the time he transferred the account; that the assignee of a chose in action takes it subject to all the equities which existed against it in the hands of the assignor, including the equitable right of set-off, if any such right existed against the assignor, and that the same relief should be afforded against Hiram Vennum, the equitable assignee, even though there be no fraud, as would have been afforded against Fry had there been no assignment.

It is sufficient to say that the bill makes no such case. It is grounded on fraud and the ownership by Fry of the last named judgment. No equitable right of set-off is shown at the time of the transfer of the account. The allegation of Fry's insolvency is not that it was at that time, but at the time of the filing of the bill.

The decree of the court below dismissing the bill is affirmed. Decree affirmed.

Syllabus. Statement of the case.

SOLOMON BENNETT

v.

GEORGE C. MCFADDEN et al.

1. CHANCERY-practice upon sustaining a motion to dissolve an injunetion. Where the court, upon a motion made to dissolve an injunction for want of equity in the bill, sustains the motion, dissolves the injunction and dismisses the bill, the allegations of the bill are to be taken as true, the same as upon a demurrer.

2. SAME-injunction—cloud on title. Equity will entertain a bill to restrain, by injunction, the sale of lands on execution, for the purpose of preventing the creation of a cloud upon the complainant's title.

WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was a bill in chancery, filed by Solomon Bennett, on the 31st of May, 1866, in the Peoria circuit court, against McFadden, sheriff of Peoria county, and others, to enjoin the sale of Bennett's lot, to satisfy an execution in favor of Selz et al. against Israel Bennett. An injunction was granted. Afterwards, on motion of the defendants, the injunction was dissolved, and a change of venue taken to Woodford county, and upon a hearing the bill was dismissed, and $50 damages were awarded in favor of defendants by reason of the alleged wrongful suing out of said injunction.

The complainant brings the record to this court.

The bill alleges that the complainant had been, since the 16th day of May, 1865, the owner in fee simple, and possessed of lot 4, block 37, in Munso & Sanford's addition to the city of Peoria; that on the 23d of May, 1866, George C. McFadden, sheriff of Peoria county, by virtue of four executions from Cook county, dated 18th May, 1866, all in favor of Morris Selz and Abraham Cohen, and against Israel Bennett, levied upon said lot, claiming the same as the property of Israel Bennett. Copies of executions, levies, etc., attached to bill as exhibits.