Bartlett v. John Cunningham.

• Citation: 1877 WL 9470,85 Ill. 22
• Parties: SAMUEL T. BARTLETTv.JOHN CUNNINGHAM.
• Decision Date: 31 January 1877
• Court: Supreme Court of Illinois

85 Ill. 22

1877 WL 9470 (Ill.)

SAMUEL T. BARTLETT

v.JOHN CUNNINGHAM.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.

Messrs. RICE & MILLER, for the appellant.

Mr. E. LANE, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This action was brought by John Cunningham, upon a promissory note executed by L. P. Deatherage and Samuel T. Bartlett. Deatherage interposed no defense to the action, and judgment by default was rendered against him. Bartlett set up as a defense, that he signed the note as surety, and on the 9th day of July, 1874, he served a notice, in writing, upon Cunningham, to collect the note immediately, which he failed to do, and in consequence of a failure to bring suit in apt time, he was released.

Upon a trial of the issues before a jury, Cunningham obtained a verdict and judgment against both the makers of the note, to reverse which Bartlett appealed.

It is first claimed by appellant, that the verdict of the jury was contrary to the preponderance of the evidence, and upon that ground the judgment should be reversed. We have given the testimony a careful consideration, but have failed to arrive at the conclusion that the jury, by their verdict, disregarded the clear weight of the evidence. The controverted question of fact, on the trial of the cause, was, whether appellant had served a notice in writing upon appellee, to collect the note. It was not claimed that a notice was delivered, personally, to appellee, but the notice was alleged to have been delivered to the agent of appellee, a Mrs. Coats. She, however, testified she was not appellee's agent, and much other evidence was introduced tending to prove the same thing. Again, appellee introduced evidence, very convincing in its character, to prove that the notice which was delivered to Mrs. Coats was not a notice to appellee to collect the note. Whether any notice was ever served upon appellee, or whether he was notified to institute suit upon the note, were questions, purely of fact, for the jury. The evidence bearing upon these questions was very conflicting, and, under the uniform decisions of this court, the finding of the jury will not be disturbed, where the record contains evidence upon which it may be predicated. The appellant also urges a number of objections to the decision of the court on instructions. The first one given for appellee is objected to, because it tells the jury the defendant is bound to establish the facts set up in his special pleas by a preponderance of the evidence, when, as is claimed, if either plea was proven,...