delivered the opinion of the court.
Upon the evidence presented in this record, we are of opinion no recovery could be sustained under the second count of the declaration. The facts proved in support of that count would establish a flagrant breach of contract, but they do not sustain an action for deceit. To sustain an action for deceit, it must be established that the representations complained of were false; that they related to matters material to the transaction, and not solely to promises as to matters in futuro; that the defendant making the false representations then knew them to be false, and that the plaintiff, exercising ordinary prudence; relied upon them as true, and to his injury. Wheeler v. Randall, 48 Ill. 182; Merwin v. Arbuckle, 81 Ill. 501; Schwabacker v. Riddle, 99 Ill. 343; McBean v. Fox, 1 Ill. App. 177; Budlong v. Cunningham, 11 Ill. App. 28; Sherburne v. Tobey Furn. Co., 19 Ill. App. 615.
The first and second counts of the declaration present entirely distinct and different causes of action, in fact as well as in theory. The suit upon the first count is for the obtaining of the signature to the appeal bond and consequent injury to appellee. The suit upon the second count is for the .obtaining of the $4,000 note and consequent injury. The evidence proffered to maintain the second count lacks the essentials of an action for deceit. tRo representations as to matters then in existence are shown as the means of procuring the promissory note of appellee./' The representations, by means of which the note was obtained, are shown to have been representations as to what appellant would do with the proceeds of the note, viz., that he would use such proceeds to pay off the taxes and overdue interest upon appelleé’s mortgage debts. An action for breach of the contract would lie upon this showing, but not this action for deceit. The evidence does, however, sustain the action under the first count, for it establishes that appellant obtained the signing of the appeal bond by appellee through representations that he was then amply able to pay the judgment appealed from. Whether such representations were false, was a question of fact for the jury upon the evidence presented. In view of the evidence as to unsatisfied judgments of record in this county at the very time of the making of the statements as to his means, we can not say that the jury were not warranted in concluding that the statements of appellant were false. The credibility of his testimony as to having subsequently paid most of those judgments which were left unsatisfied of record, was for the jury to determine. If the statements as to his means were false, then the jury were warranted by the evidence in concluding that they were made with knowledge of their falsity by appellant, and to injure appellee, and that appellee relied upom them and was injured.
We are therefore of opinion that the recovery may be sustained only to the extent to which it is based upon the first count, if that extent can be accurately determined.
The evidence discloses that by reason of the signing of the appeal bond in question, a judgment was recovered against appellee in suit on that bond, and execution thereon was levied upon portions of her real estate. The real estate thus levied upon and sold consisted of lot 2 in the Walter Butler Estate subdivision, and the Jackson Boulevard property. Lot 2 was worth at least $500. The testimony of appellant was sufficient to warrant the jury in estimating it as of that value. The Jackson Boulevard property was mortgaged, and by foreclosure of the mortgage appellee lost title to her equity of redemption therein. But she was entitled to the rents and profits of the mortgaged premises during the period of redemption after the sale under the decree of foreclosure. It appears that through a creditor’s bill filed upon the judgment obtained against appellee upon the appeal bond, the rents of the Jackson Boulevard property .of appellee during her period of redemption were applied to the payment of that judgment, and costs of receivership, to the extent of $323. The aggregate of these amounts which appear as actual damages sustained by appellee, together with interest thereon, is $911. ' Beyond this amount the judgment appealed from can not be sustained. ¡/By the giving of the second instruction, set out in the foregoing statement, the court in effect permitted the jury to find upon the issues raised by the second count of the declaration and the plea of not guilty. In this there was error, for the evidence did not sufficiently support that count to warrant a recovery thereon. The first instruction, tendered for appellee and given by the court, is also inaccurate. But if the recovery be limited to actual damages sustained under the first count, we think that the error in the giving of these instructions can not be regarded as prejudicial to appellant.
Some of the interrogatories submitted to the jury called for findings upon evidentiary facts not in themselves conclusive of any issue. They should not have been given. Only findings upon ultimate facts, or facts which may be conclusive of the issues, or some of them, are proper under the statute, which provides for the submitting of interrogatories for special findings of fact by the jury. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132.
It is argued that the giving of them to the jury was prejudicial to appellant. But it does not appear that counsel for appellant objected at the time they were given, or at any time thereafter saved an .exception to the giving of them. Therefore the error is not well assigned.
It is complained by the learned counsel for appellant that under the instruction of the court the jury might award punitive damages, irrespective of any finding that actual damages were sustained. We are of opinion that the error in this behalf is well assigned. Unless the jury found that actual damages had been sustained, no award of punitive damages or smart money could be made. Martin v. Leslie, 93 Ill. App. 44, and cases therein cited.
But we are also of opinion that if the recovery be sustained only to the extent of the actual damages sustained bv appellee, no prejudice can be said to result from any such award of punitive damages by the jury.
Certain questions upon cross-examination of appellee, answers to which were excluded, become unimportant by reason of the conclusion reached.
The evidence in this case is such as to lead us to regret that we can not affirm the judgment in its entirety.
If the appellee shall, within ten days, remit all of the judgment herein in excess of the sum of $911, the judgment will be affirmed in that amount; otherwise it will be reversed, and the cause will, in that event, be remanded. In either case the costs of this appeal must be adjudged against the appellee.
Affirmed on remittitur.*
January 20,1902, Time extended to February 6th to file remittitur. February 6,1902. No remittitur filed. Cause reversed and remanded.