O'brien v. Palmer
| Decision Date | 30 September 1868 |
| Citation | 49 Ill. 72,1868 WL 5179 |
| Parties | JOHN O'BRIENv.HENRY PALMER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago.
The opinion states the case.
Messrs. SHOREY & HAYS, for the appellant.
Messrs. BURGESS, DRISCOLL & PFIRSHING, for the appellee.
This was an action of assumpsit, brought to the Superior Court of the City of Chicago, by Henry Palmer, against John O'Brien, for the purchase price of certain property known as “Palmer's Great Western Circus,” sold by plaintiff to the defendant.
The jury found for the plaintiff, and the court rendered judgment on the verdict, having overruled defendant's motion for a new trial.
To reverse this judgment, the defendant appeals to this court, assigning as error, among others, the refusal to give certain instructions asked for by the defendant, and in giving those asked for by the plaintiff, and in not setting aside the verdict as being against the weight of evidence, and because the verdict was not in proper form.
As to the last error assigned, it will be observed, one point of controversy between the parties was, as set out in defendant's second plea, whether defendant was obliged by the contract to deliver up to plaintiff five certain notes plaintiff had executed to the defendant, on a previous purchase by plaintiff from defendant, of the property in the circus, it appearing that plaintiff had originally bought the circus of defendant on a credit, evidenced by three notes, and had re-sold it to defendant.
The form of the verdict of the jury was,--
“We find the issues for the plaintiff, and assess his damages at $4,396.65; and we find that the plaintiff is entitled to the possession of the five certain promissory notes in the proceedings mentioned and produced upon the trial by the defendant.”
The judgment was entered simply for the money part of the verdict, the court, of its own motion, rejecting the last clause as surplusage, and in this there was no error to the prejudice of the defendant. Generally, the form of a verdict is in the control of the court. Osgood v. McConnell, 32 Ill. 75.
The judgment was rendered on the substantial part of the verdict, precisely as found by the jury.
On the point that the verdict should be set aside, as being against the weight of evidence, we have to say, and we have repeatedly said, where there is a contrariety of evidence, and circumstances will, by a fair and reasonable intendment, warrant the inference of the jury, the court will reluctantly, if ever, disturb their verdict, notwithstanding it may appear to be against the strength and weight of the testimony. Lowry v. Orr, 1 Gilm. 70; Sullivan v. Dollins, 13 Ill. 85; Bloom v. Crane, 24 ib. 48. And this court has also said, that a verdict will not be disturbed for any slight preponderance of evidence, but if there is a strong preponderance, it will be set aside, especially when apparent injustice has been done. Chase v. Debolt, 2 Gilm. 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 ib. 200; Bloomer v. Denman, 12 ib. 240; Goodell v. Woodruff, 20 ib. 191.
And where the evidence is conflicting, this court has uniformly held, a verdict will not be set aside, even though it may be against the weight of evidence. Morgan v. Ryerson, 20 Ill. 343; Martin v. Ehrenfels, 24 ib. 189; Pulliam v. Ogle 27 ib. 189. In this case, the testimony was conflicting, and it was the peculiar province of the jury to determine its preponderance, an appellate court having no data by which to reconcile it, or means to weigh it. The instructions asked by defendant and refused, were the seventh and twelfth. The seventh is as follows:
“The court further instructs the jury, that if they believe, from the evidence, that the plaintiff, Palmer, on or about the 8th day of October, 1866, executed and delivered to the defendant, O'Brien, a bill of sale of the property known as ‘Palmer's Great Western Circus,’ the facts stated in such bill of sale cannot be contradicted by parol testimony so far as it relates to the contract of sale between the parties.”
In the bill of sale of the circus property, by appellee to appellant, the purchase price was stated to be $10,000, with the words, “Received payment in full.”
It is well settled, that a receipt which on its face purports to be, and is, the contract of the parties, cannot be explained or varied by parol evidence, but such portion of it as merely goes to the receipt of the money, may be explained by showing no money was in fact paid.
The instruction, as worded, was calculated to mislead the jury, for while, on the one hand, the written contract could not be explained by parol, the receipt for the purchase price of the articles sold could be. It was, therefore, properly refused.
The twelfth instruction is as follows:
“If the jury believe, from the evidence, that on the 8th day of October, 1866, when the plaintiff sold the circus property in question in this suit to the defendant, O'Brien, the said defendant held five certain promissory notes against the plaintiff, which were then due and unpaid, and that said notes were to form a part of the consideration of said sale, then the plaintiff cannot recover in this suit any damages for the...
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