Davis v. Hoeppner

• Decision Date: 30 April 1867
• Citation: 44 Ill. 306,1867 WL 5152
• Parties: ALEXANDER C. DAVISv.LEOPOLD HOEPPNER.
• Court: Illinois Supreme Court

44 Ill. 306

1867 WL 5152 (Ill.)

ALEXANDER C. DAVIS

v.LEOPOLD HOEPPNER.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

This was an action brought by appellee before a justice of the peace against appellant to recover the balance of an account for work and labor. On a trial before the justice of the peace, appellant recovered a judgment for twelve dollars and seventeen cents. The case was then removed to the Circuit Court of Jo Daviess county. At the March Term, 1866, of that court a trial was had by a jury.

Henry Davis, a son of defendant, testified that plaintiff worked for his father from the 15th of May, 1865, till the 27th of January, 1866; that he was his father's book-keeper, and kept plaintiff's account; that plaintiff attended to the stock, cut wood and did a little work on the farm; that plaintiff milked the cows and fed the stock on Sundays; that no money was due him; that he did not remember of saying to Stinele that there was thirty-five dollars due him, but may have said so the day plaintiff left.

That he was not present when the contract was made, but heard defendant say he was to pay him one dollar and a half per day; that he had plaintiff to come on Sunday and attend to the cattle; that he made out the account filed by defendant, which shows plaintiff to owe defendant twelve dollars and seventeen cents, and that it is correct; that defendant, in the same connection that he said that he was to pay plaintiff, also said plaintiff was not to charge for attending to the cattle on Sundays.

That he did not think he said to Stinele that he would pay plaintiff thirty-five dollars; and did not recollect saying to him after trial, before the justice of the peace, that plaintiff would have done better to have taken the thirty-five dollars; defendant did not authorize witness to pay plaintiff thirty-five dollars; plaintiff lost time.

Stinele testified, that plaintiff began to work in May, 1855, and quit in January, 1866; that Henry Davis told witness the day plaintiff quit work, that there was thirty-five dollars due him; after the trial by the justice, he said plaintiff would have done better if he had taken the thirty-five dollars.

Zachary P. Davis testified that he was present when the contract was made, and gives it as his brother spoke of it; that he heard his brother or father, but which he does not know, say that thirty-five dollars was due plaintiff when he left.

The jury found a verdict in favor of plaintiff, for fifty dollars. A motion for a new trial was entered, and plaintiff remitted all of the verdict but thirty-five dollars, whereupon the court overruled the motion for a new trial, and rendered a judgment for the balance of the judgment, after the remittitur was entered. Defendant below brings the case to this court by appeal, and urges a reversal, because the verdict is contrary to evidence, was contrary to the law, and because a new trial should be granted.

Mr. LOUIS SHISSLER, for the appellant.

Messrs. SMALL & MILLER, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action originally commenced before a justice of the peace by appellant, on an account for labor, against appellee. On a trial appellant recovered a judgment against appellee for the sum of twelve dollars.

The cause was removed to the Circuit Court by appeal, and on a trial in that court before a jury a verdict was found in favor of appellee for the sum of fifty dollars. Appellant entered a motion for a new trial, when appellee entered a remittitur for fifteen dollars, and the court overruled the motion and rendered a judgment for the balance against appellant. He prosecutes an appeal to this court and assigns for error that the verdict is contrary to the evidence; that it was contrary to law; that the jury disregarded appellant's instructions; and that the court should have granted a new trial.

The jury, having all the witnesses before them, should be better qualified to determine the weight proper to be given to evidence, than persons who have not heard it nor seen the witnesses testify, and the...