Clerq v. Mungin

• Decision Date: 30 September 1867
• Citation: 46 Ill. 112,1867 WL 5342
• Parties: SYSBERT DE CLERQv.JOHN MUNGIN.
• Court: Illinois Supreme Court

46 Ill. 112

1867 WL 5342 (Ill.)

SYSBERT DE CLERQ

v.JOHN MUNGIN.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county, the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The facts in this case sufficiently appear in the opinion.

Messrs. MATTOCKS & MASON, for the appellant.

Mr. A. C. STORY, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the court.

This was an action of assumpsit, to recover the proceeds of the sale of a horse, which the defendant had forcibly taken out of the possession of the plaintiff.

The testimony in the case is conflicting, and called into requisition the judgment of the jury to reconcile it, to weigh it, and it was their province to decide according as it preponderated. In such cases, courts rarely disturb a verdict--never, unless they shall have decided so manifestly against the weight of the evidence as to compel the inference either that they did not understand the case, or were so influenced by partiality or prejudice, or passion, as to be incapable of doing justice. The rule contended for by appellant is admitted, and as found in Morrison et al. v. Rogers, 2 Scam. 318, that a party whose goods or chattels have been taken from him tortiously, or unlawfully detained from him, whereby he has become entitled to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the sale and have his action for money had and received, but can recover only the money actually received. McDonald v. Brown, 16 Ill. 32.

The fact whether or not he received the money, is open to the jury, and must be decided by them on the evidence produced and on the reasonable presumptions created by the testimony. The fact has not to be proved beyond all doubt and positively, but sufficient must be proved to satisfy the jury the probabilities are the money was received, and like all other facts, it must be determined on the weight of evidence.

There was conflicting evidence on this point. No positive proof was made that the defendant actually received the money, but sufficient was shown to raise that presumption. The defendant admitted he had traded the horse for a stallion, giving five hundred dollars “to boot,” and had sold the stallion for eight hundred dollars. This affords a strong presumption that he got the value of three hundred dollars for the horse, as that is the difference between five hundred dollars and eight...