Forrest v. Oder
| Decision Date | 31 January 1867 |
| Citation | 42 Ill. 500,1867 WL 4965 |
| Parties | JOHN J. DE FORRESTv.JESSE ODER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, presiding.
This was an action of assumpsit, brought by Jesse Oder, in the Sangamon Circuit Court, against John J. De Forrest. The declaration contains the common counts. Defendant filed these pleas: first, non-assumpsit; second, a special plea that plaintiff leased defendant a farm, with the privilege of an orchard and pasturage for five cows, and, in consideration of $125 paid to plaintiff, he agreed to keep up the fences, to keep and care for all stock defendant might place on the farm for pasturage during the continuance of the lease; that plaintiff entered into possession, and defendant placed in his care a lot of mules to be kept under the agreement; that for the want of care five of the mules, worth $140 each, escaped and were lost, which he offers to set off against plaintiff's demand.
The third plea avers an indebtedness from plaintiff to defendant of $1,000, for pasturage, and the price of five mules, lost through the negligence of plaintiff, which defendant offers to set off against plaintiff's demand. Issue was joined on the first and second pleas, and a demurrer was filed to the third, which was sustained by the court.
A trial was subsequently had by the court, a jury having been waived by agreement of the parties. The court found the issues for the plaintiff, and assessed the damages at $489.50. Defendant thereupon entered a motion for a new trial, which was overruled, and judgment rendered according to the finding; to reverse which defendant prosecutes this appeal, and brings the record to this court. Messrs. MCCLERNAND, BROADWELL & SPRINGER, for the appellant.
Messrs. STEWART, EDWARDS & BROWN, for the appellee.
It is first insisted, that the finding of the court below is manifestly against the evidence, and the judgment should for that reason be reversed. After a careful examination of the testimony, we fail to arrive at that conclusion. There is no doubt some conflict, and there may be some doubt of the correctness of the finding, but we are inclined to the opinion that the evidence sustains the verdict. This court will not reverse, because the verdict is against the evidence, unless it is so clearly so that we must believe that the result would and ought to be...
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