Chapman v. Burt
| Decision Date | 31 January 1875 |
| Parties | WILLIAM W. CHAPMANv.FRANCIS G. BURT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.
This was an action of assumpsit, brought by Francis G. Burt against William W. Chapman. The declaration contained only the common counts. The suit was originally brought in Scott county, and taken by change of venue to Morgan county. There were two trials had, in the first, the jury being unable to agree. The second trial resulted in a verdict in favor of the plaintiff for $640.26, upon which the court rendered judgment. The defendant appealed.
Messrs. MORRISON & WHITLOCK, and Mr. JOHN G. HENDERSON, for the appellant.
Mr. WM. T. COLLINS, and Messrs. DUMMER & BROWN, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:
It appears, from the evidence contained in the record, that appellee placed in appellant's hands, for collection, a note against the Burces and Gilsons. Appellant brought suit on the note, and recovered a judgment against the five makers of the note. The two Gilsons sold their interest in a mill, in which they were part owners, to their partners, the three Burces, they agreeing to pay the indebtedness of the firm, including appellee's judgment.
From 1859 to April 1st, 1867, appellant and the Burces had a large amount of dealings with each other. On this latter date they had a settlement, when the firm gave appellant their note for $550, to balance their accounts.
The two Burces testify that three-fifths of the judgment in favor of appellee was included in appellant's account, on that settlement. Daniel H. Gilson testified that he paid one-fifth of the judgment to appellant on the 21st of April, 1867.
On the other hand, appellant denies that he ever received any portion of the judgment, except a part of a fifty dollar fee which he charged for obtaining judgment upon the note, and making efforts to collect it from the defendants. There was much evidence introduced on the one side to prove that no part of the judgment entered into the settlement, and on the other side that it did.
The jury found a verdict for the amount of four-fifths of the judgment, and interest for the greater portion of the time after April, 1867. A motion for a new trial was entered, which the court overruled, and rendered judgment upon the verdict.
While the evidence before the jury is not of that clear and satisfactory character that is desirable in all cases, and is in many respects entirely contradictory and irreconcilable, yet, if the evidence produced by appellee was to be considered alone, and independent of the opposing testimony, the correctness of the verdict would be beyond doubt, and the same may be said of appellant's testimony.
In such a conflict, it is the peculiar province of the jury to weigh, consider, and reconcile the testimony, if that can be done, and, from the entire evidence before them, ascertain the truth, and so find; and when they have done this, we will not interfere with the finding, unless it is manifest that they have mistaken the evidence or have been governed by passion or prejudice.
The questions of fact involved in this case have been submitted to two juries. The first failed to agree, but the second found the issues for appellee. This fact, of itself, indicates that the finding is not manifestly against the evidence. It may show that there is some doubt in regard to which party is entitled to the verdict, but not that it is clearly wrong.
The jury and the judge before whom the cause was tried, saw the witnesses on the stand, and had every means of determining the credit to be given to the evidence of each witness, while we only see the evidence on paper, and know but little of the fairness of the witnesses, their intelligence, or manner of testifying; and we should never disturb a verdict where it is sustained by a preponderance of the evidence, although slight.
On the trial of the cause, appellee introduced in evidence two receipts given by appellant, one to D. H. Gilson, which states he has received of Gilson his share on the Burt judgment against Gilsons and Burces, and it also contains a clause by which Gilson is indemnified against any further payment on the judgment. The other receipt, by its terms, releases W. E. and C. F. Burce from the further payment of a judgment rendered against Burces and Gilson in “the circuit court of Illinois.” While no plaintiff is named in this latter...
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