delivered the opinion of the Court:
This case has been twice tried in the Superior Court of Cook county, the first trial resulting in a judgment in favor of the defendant, which was reversed by the Appellate Court for the First District, and the cause remanded. (Strong et al. v. Linington, 8 Bradw. 436.) On the cause being remanded another trial was had, resulting in a verdict and judgment in favor of the plaintiffs, and this last judgment has been affirmed by the Appellate Court.
It is contended by the appellant, that the Appellate Court, by its judgment when this case was first before it, decided that there were two material variations between the contract sued on and the original draft thereof, and that the question of the materiality of these variations became res judicata, and was no longer open to discussion either in the Superior or in this court. The judgment of the Appellate Court can have no such effect in this case, for the reason that it was not final. The defendant below (appellant here) could not have maintained an appeal or writ of error to review that judgment of the Appellate Court, and the appellees here could not have their own judgment reversed, and it not being final as to one party, could not be so held as to the other. If one party is concluded by a judgment, the other must be equally concluded.
On the trial the defendant offered to prove that he only made 9135 pincers, and that he ceased to manufacture them after a certain time, which, on objection, the court refused to allow. Under the contract upon which the suit was brought the defendant was bound to pay to the plaintiffs a royalty of $1.44 per gross on at least 2500 dozen of pincers each year, whether he made and sold that many or not, and consequently the proposed and rejected evidence, as the ease was presented to the court, was wholly irrelevant, and there -was no error in refusing to hear the same.
The appellant also urges that the Appellate Court erred in not reversing the judgment of the Superior Court for error in respect to the instructions' given and refused. Complaint is made as to the first instruction given for the plaintiffs, which is to the effect that a party executing a written contract should exercise reasonable care and prudence to learn its nature and contents before signing it, by reading the same, if capable of reading, and that he would not be excused for his want of care ■and prudence in signing a contract without reading it, unless he was induced to do so by willfully false statements of the party procuring his signature. It is evident that the defendant here was seeking to avoid his contract for fraud on the part of the plaintiffs, or one of them. This is quite apparent from the defendant’s first instruction, to the effect that fraud vitiates all contracts. At law an intent to deceive must exist to constitute actual fraud. Representations, though untrue, if not made with a knowledge of their falsity, can not be said to constitute fraud where the contracting parties occupy no ^fiduciary relation or position of confidence or trust towards each other. (Sims v. Klein, Breese, 234, *302; White v. Watkins, 23 Ill. 480; Allen v. Hart, 72 id. 104; Fauntleroy et al. v. Wilcox et al. 80 id. 477; Merwin v. Arbuckle, 81 id. 501 ; • Tone v. Wilson et al. id. 529 ; Wharf v. Roberts, 88 id. 426 ; St. Louis and Southeastern Ry. Co. v. Rice, 85 id. 406.) The use of the word “willfully, ” in relation to the statements relied on in this case as constituting fraud, can not vitiate the instruction. The statements to which this word is applied were claimed to have been, that the triplicates presented for execution were correct copies of the original draft of the contract, except as to a matter not affecting the defendant’s interest in the least, and if they were false, the party making them must have known their falsity.
No error is perceived in the modification of the appellant’s first and second instructions, nor in refusing the others. What has been said in regard to the plaintiffs’ first instruction applies to the defendant’s fifth instruction. What is negligence in signing a contract without reading the same, is not a question of law, but one of fact for the jury, to be judged of from the peculiar facts and circumstances of each case. In such a case it is hardly proper to select certain facts, and tell the jury that they afford no evidence of negligence or want of proper and reasonable care.
Without noticing every point, it is sufficient to say that we find no error in the record calling for a reversal, and the judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.