Geary v. O'neil
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 9051,73 Ill. 593 |
| Parties | DAVID C. GEARYv.PATRICK O'NEIL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSIAH MCROBERTS, Judge, presiding.
Messrs. SNOWHOOK & GRAY, and Mr. W. M. JOHNSON, for the appellant.
Messrs. HAWES & LAWRENCE, for the appellee.
This suit was brought by appellee, to recover for a quantity of liquors claimed to have been sold and delivered by plaintiff to defendant. On the trial below, it was insisted, by defendant, that, although the goods were charged on the books to him, it was understood that he was in no event to be responsible for their payment; that they were purchased by and for his brother James. On the other hand, it is claimed that it was understood, before the goods were delivered, that defendant was to be responsible for the goods. The jury found for plaintiff, and, after overruling a motion for a new trial, the court rendered a judgment on the verdict, and this appeal is prosecuted to reverse the judgment.
It is insisted that there is no count in the declaration under which the recovery could be had; that there should have been a count for goods bargained and sold. We perceive no force in this objection. The evidence, if it shows anything, proves that the goods were sold and delivered. There can be no pretense that the evidence tends, in the slightest degree, to prove a mere contract of purchase, without a delivery, that would render a count for goods bargained and sold necessary. The evidence, as contradictory as it is in other respects, does prove that the goods were sold, either to appellant or his brother, and were delivered to his brother. This was not controverted in the court below, nor is it in this. The controlling question then was, and now is, whether the credit was originally given to appellant or to James Geary. On that question, the jury have found that the credit was given to appellant, and not to James. The evidence on the question presented a sharp and actual conflict that could not be reconciled. It was for the jury to decide where the truth lay, and having determined it, and the judge trying the case having expressed his satisfaction with the finding, we shall not examine, critically, the evidence, as it appears on paper, and balance it nicely, to see if the finding is right. It was the duty of the court below, on the motion for a new trial, to so consider the evidence, and, if not satisfied with the verdict, to have set it aside, and we will presume he performed his duty. He saw the witnesses, and had superior means of judging to whom credit should be given, and we shall not disturb his decision on that question.
It is also objected that the court erred in refusing to give appellant's sixth instruction. That instruction had no evidence to support it. It proceeded upon the theory that if a promise was made by appel...
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