MR. JUSTICE ENGLISH,
dissenting:
One paragraph of the majority opinion sets forth two principles of law as governing the chancellor in his determination of defendants’ motion for a finding in their favor at the close of plaintiffs’ evidence. These two principles are:
Rule (1). It was the duty of the court to weigh the evidence. (This statement is in recognition of Section 64(5) of the Civil Practice Act which provides: “In ruling on the motion the court shall weigh the evidence.”)
Rule (2). It was the duty of the court to consider whether there was any evidence, together with all reasonable inferences therefrom, tending to prove plaintiffs’ allegations.
After merely mentioning Rule (1), the majority has proceeded to examine the record in the light of Rule (2) and on that basis has reversed the trial court’s determination. I cannot, follow. The two rules are mutually exclusive, and application of the any evidence rule ignores or negates the statutory directive. It does violence to the long-established concept of “weighing the evidence” and the mandatory meaning of the word “shall.”
The importance of selecting the proper rule for examination of the record by this court becomes apparent when there is added to Rule (1) the corollary principle that a chancellor’s decision on the weight of the evidence, confirming a Master’s Report, may be reversed in this court only when it is found to be palpably contrary to the manifest weight of the evidence. (Allendorf v. Daily, 6 Ill2d 577, 129 NE2d 673; Cuneo Press, Inc. v. Warshawsky & Co., 24 Ill App2d 163, 164 NE2d 258.)
Rule (2) is, of course, the same as that which governs the trial judge on a defendant’s motion for directed verdict in a jury trial. It is, unquestionably, a proper principle in such a case and its application is essential to maintain the separate functions of judge and jury, with the jury as the fact finder. Thus, in a jury case, so long as there is “any evidence, together with all reasonable inferences therefrom” etc., tending to prove plaintiff’s case, the judge must allow for the possibility that the jury might believe this evidence and disbelieve other evidence, even though the judge, himself, might consider the evidence as heavily weighted in favor of defendant. The basic reason, therefore, why it is improper for the judge to weigh the evidence on a motion for directed verdict is because to do so would constitute an invasion of the province of the jury as fact finder.
The situation is altogether different, however, when the judge, himself, is the fact finder. At the close of the plaintiff’s evidence in a nonjury case, there is absolutely no reason for the judge to consider the evidence in the light most favorable to the plaintiff, or merely to determine if there is any substantial evidence tending to prove plaintiff’s case. Rather, as the trier of the facts, should he then consider the case as he would at the close of all the evidence, reaching his decision on the basis of that evidence which he believes, giving due regard to the plaintiff’s burden of proof.
Under the view expressed in the majority opinion, if there were any evidence tending to establish a plaintiff’s case, the defendant would be required to put in his evidence, even though the chancellor, as the trier of the facts, was then and there convinced by the proof already in evidence that there should be a finding in favor of the defendant. This is a procedure devoid of reason. It can be very costly in both money and time to courts as well as to litigants, and it cannot possibly serve any useful purpose. The day in court to which a plaintiff is entitled, is his own day and not the defendant’s.*
The legislative direction that “the court shall weigh the evidence” is not a new concept requiring judicial interpretation to establish the meaning of the words used. There are certainly hundreds, and probably thousands, of Illinois decisions referring to, and accepting as beyond dispute, the process of weighing the evidence. The expression, “manifest weight of the evidence,” without further definition than that implicit in the words themselves, appears in almost every volume of the Illinois and Illinois Appellate Court Reports, at least for many years.
Instruction 2.01 of Illinois Pattern Jury Instructions * includes the following: “Yon are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them.” Then follows in the instruction a recitation of factors which the jury may consider in making such a determination, including the witness’ opportunity to observe, his interest, manner while testifying, and so on.** The word “weight” thus used in reference to the evidence was not defined in that instruction, nor elsewhere in IPI, but was considered by the committee as so well-known and commonly used as to be “conversational,” “understandable,” “unslanted,” and “accurate.” (IPI Foreword, Page XIII.)
In hundreds of cases, also, our courts have declared the law applicable to a motion for directed verdict and, in doing so, have referred to weighing the evidence. For example, it was said in Peters v. Catt, 15 Ill2d 255, 259, 154 NE2d 280, that in such a situation “the only question on review is whether there is any evidence tending to prove the allegations in the complaint (citing cases). Neither the trial court, nor this court may weigh the evidence on a motion for a directed verdict. (Mitchell v. Van Scoyk, 1 Ill2d 160, 115 NE2d 226.)” More often than not, opinions, such as the one just quoted, and textbooks also, state this principle by setting off the two methods of considering the evidence as being in opposition to each other (amy evidence as against weight of the evidence). (ILP Trial, § 132.)
The history of Section 64(5) of the Practice Act has an important hearing on this case. As first enacted in 1941, the section was applicable only to equity cases. Up to that time a defendant’s motion for a finding at the close of plaintiff’s evidence constituted a submission of the whole case for decision, and by making the motion the defendant waived the right to offer evidence. Consequently, as was held in Fewkes v. Borah, 376 Ill 596, 602, 35 NE2d 69, “If the motion is allowed and not sustained on review the proper judgment on review is to reverse the decree entered and direct a decree in accordance with the prayer of the complaint.” Under the law as it existed prior to 1941, the cases are not consistent as to whether it was the duty of the chancellor to apply the any evidence rule on such a motion or to decide the case on the merits after weighing the evidence. That is of no moment now, however, because the 1941 statute spoke on that point as well as on the principal purpose of the amendment, namely, elimination of the defendant’s waiver of his right to offer evidence. The section, as adopted in 1941, provided:
Upon the trial of a proceeding in equity defendant may, at the close of plaintiff’s case, move for a finding in his favor or move to dismiss the suit for want of equity. Either motion shall constitute a submission of the cause for decision on the merits. If the decision on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion to dismiss or for a finding shall be deemed to have been waived and withdrawn.
It was subsequently held that this language did not change the old rule on waiver so far as the reviewing court was concerned. (Kanauske v. Clark, 388 Ill 357, 57 NE2d 890 (1944); Reiter v. Illinois Nat. Cas. Co., 328 Ill App 234, 65 NE2d 830 (1946).) To remedy this situation, legislation was introduced in the 1947 session. Although the Supreme Court, after rehearing on review of the Reiter case (397 Ill 141, 73 NE2d 412 (1947)) made the modification itself, the legislature proceeded to adopt the corrective statute. In doing so, however, there was omitted from the 1947 amendment the earlier provision to the effect that the motion constituted a submission of the cause for decision on the merits. It was thus left somewhat unclear as to whether the chancellor should weigh the evidence in an equity case.*
During all this period the statute had no application to nonjury law cases in which the any evidence rule was consistently applied.
In 1955 a Joint Committee of the Illinois State and Chicago Bar Associations undertook the monumental task of revising the Practice Act, and their work, as adopted hy the legislature, included further amendment of Section 64(5). The purposes of the amendment, as expressed in the Joint Committee Comments, were to extend the section to cover nonjury law cases, and to add a sentence which “makes it clear that in ruling on a motion for a finding at the close of plaintiff’s case, the court shall weigh the evidence.” (Ill Rev Stats, Ch 110, § 64(5), p 317. See also Jenner and Tone, Historical and Practice Notes, p 320.)
The sentence added by the 1955 amendment does precisely that, and in the strongest possible language. It reads: “In ruling on the motion the court shall weigh the evidence.”
The Joint Committee noted further: “This clarifies the law applicable to equity cases (cf. Fewkes v. Borah, 376 Ill 596, 35 NE2d 69 ... ) and changes the rule in nonjury law cases (see John Deere Plow Co. of Moline v. Carmer, 350 Ill 104, 108, 182 NE2d 762 (1932)).”
The majority opinion relies on Fewkes v. Borah, 376 Ill 596, 35 NE2d 69, as authority for its any evidence rule. This was a case decided before the effective date of any of the legislation I have referred to above, and can, therefore, have no bearing on interpretation of the current statute.
City of West Frankfort v. Fullop, 6 Ill2d 609, 129 NE 2d 682, is also cited by the majority. This case, too, was decided before the 1955 statutory directive became effective and the opinion made no reference to Section 64(5).
The court in City of West Frankfort appears to have relied heavily on Fewkes and on Middleton v. Middleton, 339 Ill App 448, 90 NE2d 248 (1950), both of which it cites with approval. The opinion in Middleton (also handed down prior to the 1955 amendment) makes it clear on the any evidence proposition that the court considered itself bound by Fewkes. Furthermore, the comment in the Middleton opinion was of no consequence to the decision in the case, as the chancellor’s dismissal of the complaint was affirmed.
The any evidence rule was also referred to with favor in Taber v. Defenbaugh, 9 Ill App2d 169, 132 NE 2d 454 (a nonjury law case), but this, too, may have been unnecessary to the decision, as the trial court’s dismissal order was affirmed. The decision was in February, 1956, no mention was made of the statute, and the trial undoubtedly took place prior to the effective date of the amendment.
Other recent cases touching on the subject include Doss v. Kirk, 8 Ill App2d 536, 132 NE2d 49, but this, too, was a nonjury law case tried before the effective date of the amendment.
Spitzer v. Bradshaw-Praeger & Co., 10 Ill App2d 445, 135 NE2d 114 (1st Dist) was another nonjury law case. It was decided in May, 1956, but the trial had been held before January 1, 1956, the date on which the 1955 revision of the act became effective. The statute was not cited, and the court did cite the Taber case and three other old cases (decided in 1917, 1904 and 1894) expressing the any evidence rule in nonjury law cases which the 1955 statute later abrogated.
In 1960 this court decided Continental Illinois National Bank & Trust Co. of Chicago v. National Casket Co., 27 Ill App2d 447, 169 NE2d 853, also a nonjury law case. In applying the any evidence rule, the opinion cited the Spitzer case and two jury cases. There was no reference to the statute, and I can only assume that the court’s attention was not invited to the 1955 change in the law.
Collinet v. Collinet, 31 Ill App2d 72, 175 NE2d 659, is an even more recent decision of this court in an equity case. In commenting on Section 64(5), the court acknowledged the statutory direction that “the court shall weigh the evidence” and stated at page 76:
“As at law, it is the rule in equity that a motion to dismiss at the close of the plaintiff’s case must he denied if there is cmy substantial evidence tending to prove plaintiff’s case. City of West Frankfort v. Fullop, 6 Ill2d 609, 129 NE2d 682.” (Emphasis supplied.)
To my knowledge, the only other decision which has mentioned Section 64(5) since its 1955 amendment is Banks v. Gregory, 16 Ill2d 227, 157 NE2d 12, a case in equity for specific performance of a contract. The opinion in that case recognizes, as does the majority opinion in the instant case, the requirement that the court weigh the evidence, and further that the motion was “a procedural means of submitting the whole case to the court for a determination of the merits.” (Page 231.) Then, however, the court proceeds to state that, in determining whether there is uany evidence tending to prove the plaintiff’s allegation (it) and all reasonable inferences from such evidence must be considered in the light most favorable to the plaintiff.” (Page 232.) No cases are cited. The trial court’s dismissal of the complaint was affirmed on the ground that the contract was too vague and indefinite to be specifically enforceable. Since this was a ground apparently available on the basis of the pleadings, the court’s discussion of the standard to be applied in considering the evidence would seem to be dictum.
In my opinion the provisions of Section 64(5) bring onr practice into conformity with that provided in the federal courts under Federal Rule 41(b). That rule declares that on a defendant’s motion at the close of plaintiff’s evidence “in an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.”
In the case of Allred v. Sasser, 7 Cir, 1948, 170 F2d 233, the court said at page 234:
“Appellant contends that at close of plaintiff’s case his evidence should have been taken in its aspect most favorable to him, together with all reasonable inferences and, thus construed, that the evidence does not support the above findings of the Court. His view is that the Court should have limited its consideration of the evidence to the narrow limits applicable to the consideration of the evidence in a jury case upon a motion by the defendant for a directed verdict at the close of plaintiff’s case.
“Appellee takes the position, in which we concur, that under Rule 41(b) of the Federal Rules of Civil Procedure, 28 ÜSCA, upon a motion to dismiss at the close of the plaintiff’s case, the trial court determines the facts without being thus limited and must weigh and evaluate the evidence.
“In this case the trial court was the trier of the facts, and in considering the evidence was not bound to view it in a light most favorable to the plaintiff, with all attendant favorable presumptions, but was bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as he believed it entitled to receive.”
To the same effect are Penn-Texas Corp. v. Morse, 7 Cir, 1957, 242 F2d 243, 246; Chicago & Northwestern Ry. Co. v. Froehling Supply Co., 7 Cir, 1950, 179 F2d 133, 135; Gary Theatre Co. v. Columbia Pictures Corp., 7 Cir, 1941, 120 F2d 891, 892. See also 5 Moore’s Federal Practice, 2d Ed 1951, pages 1045, 1046.
I would not have stated my views so extensively did I not consider that Section 64(5), as I interpret it, expresses an extremely salutary rule and furnishes the courts with a valuable tool, much needed in the determination of their overwhelming volume of litigation. The statute has, as I see it, suffered many unintended blows from reviewing courts, and I fear for its survival under the lethal charge leveled at it by so highly respected an authority as the majority of this court. Certainly, it would he unreasonable to expect further remedial action from the legislature which could do no more than to direct, as it already has, that the court shall weigh the evidence.
The majority’s recitation of facts is, of course, based on the any evidence rule. I believe there is no question whatsoever that, considered under the rule of weighing the evidence, the record abundantly supports the findings and conclusions of the master and the chancellor in favor of defendants. And under this interpretation the decree should not he set aside unless contrary to the manifest weight of the evidence. (Allendorf v. Daily, 6 Ill2d 577, 129 NE2d 673; Cuneo Press, Inc. v. Warshawsky & Co., 24 Ill App2d 163, 164 NE 2d 258.) Even applying the any evidence rule, however, it is my opinion that the complaint should have been dismissed.
Some of the facts recited in the majority opinion hear interestingly on its conclusions of fraud. I refer, for example, to the recital that Lahman and Gould “entered into a contract on May 29, 1950, intending to take Lahman completely out of Interlake and to put W. E. G-ould & Company in full control as owner of all its stock.” This is in complete accord with the affidavit furnished hy Lahman at the time of the transfer of the shares and at complete variance with the majority’s conclusion that it was false.
Again, there is the recital that “Lahman agreed to pay the Brubakers $5000 in payment of some past due Lahman notes.” And, on the other hand, the further recital that at the time of transfer of the stock plaintiffs’ own attorney prepared an affidavit for Lahman to give to plaintiffs in which it was stated that the stock “is being sold and delivered.” The record shows that the affidavit made no reference to notes; that the stock certificate was delivered to Lahman; but that the notes were retained by plaintiffs.
Further pertinent fact recitals in the opinion are to the effect that the negotiations went on for almost a year; that plaintiffs consulted with their attorney, Sidney Simon, about transfer of the stock; that “Simon over a period of four months had a number of conferences with Lahman and with Brubaker, separately and together”; that when the transfer was finally made Simon was in attendance and handled the closing arrangements.
It would seem to me to be significant, on the question of whether plaintiffs were defrauded, that they had advice of counsel throughout the negotiations and at the closing. This must be an important factor unless the record discloses that both plaintiffs and their attorney were fooled by a false affidavit. Quite the contrary appears. Neither placed any reliance on the affidavit, since, as the opinion states, the plaintiffs “were openly suspicious that Lahman had a collateral agreement with G-ould,” and Simon testified that neither he nor Bruhaker believed Lahman’s representations.
What, then, are the majority’s findings of fact as to fraud by Lahman? They appear to be that he spent months trying to persuade plaintiffs to give up their stock so that he could make delivery to Gould; that the stock was worthless; that he was in trouble on his contract with Gould and might go to jail if he didn’t make good; that he had no intention of welching on his obligation to Gould, as he was honor bound.
Most importantly, however, the majority’s finding of fraud by Lahman is based on his giving of the affidavit negativing his further interest in Interlake. The opinion finds that this was deliberately false.
I fail to see the materiality of Lahman’s continuing interest as a basis for rescission, and, as I have pointed out, the record shows the affidavit was not believed by plaintiffs, anyway. Assuming its materiality, however, I believe that the record does not establish the falsity of the affidavit. It does show that there has been litigation pending since 1955 between Lahman and Gould to determine that very issue, and, after thousands of pages of testimony before a master, the case remains undetermined, and this court does not have the benefit of that testimony.
Conclusive in undermining the majority’^ reliance on falsity of the affidavit in establishing fraud against Lahman, is the presentation of this point in the briefs. Gould devoted a substantial part of his brief to the matter of the affidavit (pages 30-39). In their reply brief, however, plaintiffs waived the entire question, stating very simply:
“The propositions discussed on pages 30-39 of Gould’s Brief relating to the Affidavit are impertinent because plaintiffs attach no significance to the Affidavit and did not even refer to it in their Complaint or in their testimony.” (Emphasis supplied.)
I am willing to take plaintiffs’ own evaluation of this point.
As to Gould, I find in his brief no contention that he had no knowledge of Lahman’s stock negotiations with plaintiffs. As found by the majority, Gould contracted with Lahman on May 29, 1950 for the purchase of all of the stock of Interlake, some of which was owned by plaintiffs. Thereafter, from time to time, for almost a year Gould urged Lahman to make delivery. The key to the finding that Gould conspired with Lahman to defraud plaintiffs is apparently found in the quoted testimony of Lahman that he told Gould he was having difficulty getting plaintiffs’ stock; that Gould told him that if it was a question of money he should offer money to Brubaker — -do anything in order to get the stock.
The effect of this conversation on Lahman was indicated by his immediately following testimony: “so I began to approach Mr. Brubaker from a monetary standpoint.” Ultimately, of course, money was paid to Brubaker and the stock was delivered.
In this, I see no conspiracy to defraud. I consider it entirely unreasonable to infer, as the majority does, from the statement attributed to Gould that he had directed or urged Lahman to do anything illegal.
The essential elements of a cause of action of this character are (1) that defendants made a representation in regard to a material fact, not merely an opinion as to value; (2) that such representation was false; (3) that such representation was not actually believed by defendants to be true; (4) that it was made with intent that it should be acted on; (5) that it was acted on by plaintiffs to their damage; and (6) that, in so acting on it, plaintiffs were ignorant of its falsity and believed it to be true. (Bonxsein v. First Nat. Bank, 292 Ill 500, 502, 127 NE 133; Jorgensen v. Baker, 21 Ill App2d 196, 201, 157 NE2d 773; Schmidt v. Landfield, 23 Ill App2d 55, 161 NE2d 702, affirmed 20 Ill2d 89, 169 NE2d 229.)
For the reasons indicated above, I believe that the evidence has wholly failed to substantiate a case of fraud as to any of the defendants.
If plaintiffs had ever had a cause of action to rescind the sale of their stock, it was lost through laches. The agreement was concluded on May 9, 1951. I have been unable to determine from the record that anything of consequence to the claim of fraud was discovered or learned by plaintiffs after that date. The record and the majority opinion do disclose that the attorney who represented plaintiffs in the transaction had advised plaintiffs at the time that he thought they had a good cause of action against G-ould. Yet, suit was not started until fifty-two months later. During this period the stock was not transferred (except by Lahman to G-ould), but (as found by the master and the chancellor) the economic position of defendants in relation to the stock had been greatly altered, and there had been ample opportunity for plaintiffs to sit back and speculate upon the profit possibilities of Interlake, which had changed radically for the better. This, they cannot equitably do. It is well settled that, in order to rescind for fraud, the election so to do must be made promptly. Delays of eleven, twelve, seventeen and eighteen months, have been held too long. (Crawford Realty & Development Corp. v. Wood-lawn Trust & Sav. Bank, 382 Ill 354, 361, 47 NE2d 81; Kanter v. Ksander, 344 Ill 408, 415, 176 NE 289; Huiller v. Ryan, 306 Ill 88, 94, 137 NE 484; Foston v. Swanson, 306 Ill 518, 523, 138 NE 119; Mock v. Higgins, 3 Ill App2d 281, 298, 121 NE2d 865.)
In. the foregoing, I have, considered the entire record, as the master did, without the exclusion of plaintiffs’ testimony as to their claim against Gould. I believe, however, that this testimony should have been excluded, on the authority of Smith v. Billings, 177 Ill 446, 58 NE 81. See also Steele v. Sullivan, 337 Ill App 290, 85 NE2d 864 (First District, 1949), and Clark v. Harper, 215 Ill 24, 42, 74 NE 61.
The fact that Gould testified on call of plaintiffs under Section 60 does not change the rule. He was not, as stated by the majority, “provided with full opportunity to give his version of the facts as opposed to the version of plaintiffs.” Under frequently reiterated decisions, he was strictly confined to matters about which he had been interrogated by plaintiffs’ attorney. Certain it is that neither the chancellor nor we are in any position to determine that Gould’s full story was told before his death. The majority’s conclusion that Gould should have abandoned his motion to dismiss, and proceeded with his case in order to avoid some sort of estoppel in application of Section 2 after death, finds support in neither law nor logic.
I agree with the majority that there was no evidence of fraud concerning the agreement of May 25, 1949; that the previous decision of this court reversing the appointment of a receiver should not be disturbed; and that the case should be remanded for further proceedings concerning the fees of the master, the receiver, and the receiver’s attorney.
The next-to-last paragraph of the majority opinion highlights the confusion which will result in the trial court from misapplication of the any evidence rule by this court. Having examined the record only under the any evidence rule, and having, therefore, not considered that part of the evidence favorable to defendants, the majority, nevertheless, concludes that, on remandment, in the absence of the presentation of rebutting- evidence by defendants, a decree should he entered returning the stock to plaintiffs. Under this direction, then, there may he a decree entered against defendants without the court’s ever having considered the voluminous evidence in their favor which is already a part of the. record in this case. This error should speak for itself.
The wording of the majority is “any substantial evidence.” Most all of the eases (which will be discussed later) referring to this rule use the term “any evidence.” The rule, so far as it applies to this ease, is the same. I shall, therefore, use the shorter term in this opinion and shall consider my remarks to apply, as well, to the term, “any substantial evidence.”
A concomitant of the any evidence rule as found in all the decisions relied on by the majority (including the most recent expression of the Supreme Court) is that the evidence must be considered in the light most favorable to plaintiff.