Howitt v. Estelle

Citation1879 WL 8505,92 Ill. 218
PartiesSARAH E. HOWITTv.ANESTASIA ESTELLE.
Decision Date30 June 1879
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Clay county; the Hon. JAMES C. ALLEN, Judge, presiding.

Messrs. COOPER & SMITH, for the plaintiff in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Anestasia Estelle brought an action before a justice of the peace against Sarah E. Howitt, to recover the value of a sewing machine. On a trial before the justice, plaintiff recovered a judgment, and also on a trial on an appeal to the circuit court.

The evidence is irreconcilably conflicting. Plaintiff below swore most positively that she sold and conveyed to defendant a house and lot in Wichita City, in Kansas, for the sum of $150, and received the machine in controversy in part payment, at the price of $75, and that defendant delivered the machine to her. Defendant below swore positively that she did not purchase the house and lot, or even sell plaintiff the machine. She, however, admits receiving a deed for the house and lot, and having it recorded. She claims it was only to be a purchase in case she liked the house and lot when she should see them, but that she did not like the title; that it was understood that in case she declined to become the purchaser she was to endeavor to sell the property, but had been unable to do so. She says she then advanced plaintiff $26 in money and about $30 worth of merchandize, with the agreement that she was to hold the house and lot as security for these advances. She testified that she afterwards sold the machine for $37; that owing to the fact plaintiff had separated the attachments from the machine and had them in her possession, she was unable to obtain a better price.

Lebus testified, that after the trial before the justice, in endeavoring to effect a compromise between the parties, in conversing with plaintiff she admitted that defendant had paid her and she had no claim on the machine, but insisted that defendant's husband owed her.

Potts testified, plaintiff at one time had all the machine attachments, and agreed to return them to defendant; but this witness admitted that he had been convicted at that term of selling a forged note, but that a new trial had been granted.

This evidence is entirely irreconcilable, and in such a case it is for the jury to weigh and give it such credit as it deserves. Whilst it may be unsatisfactory to us as it appears on paper, it may have...

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