Carter v. Marshall

• Decision Date: 30 June 1874
• Citation: 72 Ill. 609,1874 WL 8905
• Parties: JOHN W. CARTERv.JAMES P. MARSHALL.
• Court: Illinois Supreme Court

72 Ill. 609

1874 WL 8905 (Ill.)

JOHN W. CARTER

v.JAMES P. MARSHALL.

Supreme Court of Illinois.

June Term, 1874.

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Messrs. GREEN & GILBERT, and Mr. SAMUEL P. WHEELER, for the appellant.

Messrs. LINEGAR & LANSDEN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Appellee claims to be the landlord of appellant, and this litigation is induced by an effort, on the part of the alleged tenant, to resist the claim asserted, by showing that he is the tenant of the Emporium Real Estate and Manufacturing Company. The property in controversy is the Mound City Railroad, its rolling stock and franchises.

Appellee, as trustee for the bondholders, executed a lease on this property to Hiram Boren, who, it is alleged, assigned it to appellant. The principal controversy is, whether the assignment on the lease was made with appellant's consent, or whether he ever accepted it. He had previously been in possession of the road under a verbal lease from the Emporium Company.

The evidence on this material point, viz: the assignment and acceptance of the lease, is flatly contradictory. The original lessee, Boren, has since died. He had given his testimony on a former trial between the parties, on the question of the assignment of the lease to appellant. That testimony was all-important in the present trial. Witnesses who heard it, gave the substance of his testimony according to the best of their recollection.

The court, at the instance of appellee, instructed the jury, that if they “believed, from the evidence, that Hiram Boren is dead, and that he was a witness in this cause at a former trial, then it is proper for the plaintiff to show, by a witness who was present and heard his evidence at such former trial, what that evidence was; and the jury should consider the facts sworn to by such witness as the evidence of Hiram Boren, and give it the same weight that you would if he was living, and had given the same state of facts in evidence before you.”

This instruction is fatally erroneous in assuming that the witnesses who undertook to state the former testimony of Boren gave it accurately. That was the province of the jury to determine, and it was error in the court to interfere. If it appeared, clearly, from the testimony, that the Boren lease had been assigned to appellant, and had been accepted by him, we might say the charge had worked appellant no injury. Without intending to intimate any opinion as to the weight of the evidence, we may be permitted to say this instruction may have misled the jury on this all-controlling point in the case. The court, no doubt, intended only to say to...