#### Philip Karcher, Appellant, v. Dudley A. Tyng & Company et al., Appellees.

Gen. No. 20,887.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed October 6, 1915.

Statement of the Case.

Action on the case to recover damages for alleged fraud and deceit by Philip Karcher against Dudley A. Tyng & Company, a corporation, C. W. George and William C. Jacklin. The declaration consisted of two counts. The first count, in substance, charged the defendants with falsely, fraudulently and knowingly making certain false and fraudulent representations to the plaintiff as to the condition of the La Touriste Manufacturing Company; that the plaintiff relied upon such representations and as a result thereof suffered a loss. The second count was substantially the same as the first, save that it also charged that the defendants entered into a wilful and malicious conspiracy, agreement and undertaking to cheat and defraud the plaintiff. To the declaration, all the defendants filed pleas of the general issue.

The case was tried before the court and a jury, and when the plaintiff rested, the trial court, of his own motion, directed a verdict for the defendants. This appeal followed.

Fred W. Reinhardt, for appellant.

Charles A. Nowak and W. R. Hauze, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Scanlan

delivered the opinion of the court.

*63Abstract of the Decision.

Trial, § 195 * —when peremptory instruction erroneous. A peremptory instruction should not be given when there is evidence introduced by the plaintiff tending to prove the material allegations of the declaration.