Herkimer v. Nigh
| Decision Date | 28 February 1882 |
| Citation | 10 Ill.App. 372,10 Bradw. 372 |
| Parties | JACOB D. HERKIMERv.FULLER NIGH. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Jasper county; the Hon. T. S. CASEY, Judge, presiding. Opinion filed April 14, 1882.
Messrs. CRAIG & CRAIG, for appellant; that the instruction was erroneous as assuming a fact, viz., that appellant was acting as receiver, and appellee as contractor, in making the settlement, cited Goodkind v. Rogan, 8 Bradwell, 416; Village of Warren v. Wright, 3 Bradwell, 613; C. & A. R. R. Co. v. Bloomfield, 7 Bradwell, 212; Chicago v. Bixby, 84 Ill. 82; Com. Nat. Bank v. Proctor, 98 Ill. 558.
Payment of money may be proved by parol, notwithstanding a receipt is taken: Hinchman v. Whetstone, 23 Ill. 185.
An instruction should not give undue prominence to certain portions of the testimony: Irish v. Smith, 8 S. & R. 573; The People v. Garbutt, 17 Mich. 26; Frame v. Badger, 79 Ill. 446.
The court should not, in an instruction, express an opinion as to the weight of certain testimony: Richmond v. Roberts, 98 Ill. 472; Harrison v. Crocker, 39 Wis. 74; Bourk v. James, 4 Mich. 337.
The jury should be left free to determine from all the evidence whether there was a full settlement: L. S. N. G. Co. v. Ill. Cent. R. R. Co. 75 Ill. 394; Ewing v. Runkle, 20 Ill. 448; Guar. Mut. Life Ins. Co. v. Hogan, 80 Ill. 35; T. W. & W. R'y Co. v. Moore, 77 Ill. 217; Chesney v. Meadows, 90 Ill. 430; Rowe v. Wright, 12 Mich. 291; Chicago v. Lavelle, 83 Ill. 482.
Mr. JAMES W. GIBSON, for appellee; that where there is evidence to support the verdict, it will not be set aside, cited T. W. & W. R'y Co. v. Moore, 77 Ill. 217; White v. Clayes, 32 Ill. 325; First Nat. Bank v. Mansfield, 48 Ill. 494; Graham & Waterman on New Trials, 1297.
The evidence was conflicting, and it was the province of the jury to weigh it, and their finding should not be disturbed: Martin v. Ehrenfels, 24 Ill. 187; Morgan v. Ryerson, 20 Ill. 343; Millikin v. Taylor, 53 Ill. 509; Fitch v. Zimmer, 62 Ill. 126; Robinson v. Parish, 62 Ill. 130; Chapman v. Stewart, 63 Ill. 322; C. & A. R. R. Co. v. Stover, 63 Ill. 358; Vogt v. Buschman, 63 Ill. 521; Tucker v. Watte, 64 Ill. 416; McNellis v. Pulsifer, 64 Ill. 494; Simons v. Waldron, 70 Ill. 281; Connelly v. The People, 81 Ill. 379; Lewis v. Lewis, 92 Ill. 237; Davis v. Mitchell, 93 Ill. 593.
In 1878, Jacob D. Herkimer was receiver of the Grayville and Mattoon Railroad Company, and entered into a contract with Fuller Nigh, whereby said Nigh was to construct the unfinished portion of the road between Prairie City and Mattoon, for the sum of $91,038, from which some deductions were to be made for work already done and material furnished. Nigh, at request of Herkimer, paid out $5,000, for right-of-way, $149.75 for grass seed, and several other small sums; and in June he got a check from Herkimer as receiver for $5,000, and not at the time having use for that amount, he loaned Herkimer, personally, $4,200. In September following, a settlement was had between the parties, Mr. Bayless Hanna acting on behalf of Herkimer, and Mr. James C. Robinson acting as counsel and adviser for Nigh.
At the time of the settlement a receipt was given by Nigh as follows: “Received, Robinson, Crawford County, Ills., the 9th day of September, A. D. 1878, from J. D. Herkimer; received, of the Grayville & Mattoon Railroad, the sum of nine thousand ($9,000) dollars, the said sum being in full of all claims or demands for work done, tools or materials furnished, of whatever description, by me, upon the line of said railroad, under and by virtue of two separate contracts, entered into by me with said Jacob D. Herkimer, as receiver aforesaid, and bearing date respectively April 22d, and February 1st, of the year 1878.
F. NIGH.”
The present suit was prosecuted by Nigh, appellee, against Herkimer, appellant, to recover the $4,200, borrowed money, and the items specified above of moneys paid out; and he obtained a verdict and judgment in the circuit court for $4,375.75. The point at issue between the parties is whether the $9,000 mentioned in the receipt was paid only in settlement of the contract price of $91,038, for finishing the construction of the road, or was paid in full settlement of all demands, and included the borrowed money and other items involved in this suit. Besides the receipt, appellee introduced several witnesses whose testimony tended to establish his theory of the case; and, on the other hand, it was the admitted testimony of Mr. Hanna and Mr. Robinson, that the settlement included all claims and demands of appellee against appellant, of whatsoever nature and character, existing at that time, and Mr. John H. Halley testified he was present at the time of the settlement; that there was no accounting, and no items mentioned, and it was merely a lumping settlement...
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