Kent v. Mason
| Decision Date | 31 December 1877 |
| Citation | 1 Bradw. 466,1 Ill.App. 466 |
| Parties | EDMUND B. KENT, Adm'r, etc.v.JEREMIAH V. MASON, Ex'r, etc. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.
Mr. H. bigelow, for appellant; against the admission of testimony of the manner of dealing with other parties as tending to show that the notes in question had been paid but not surrendered, cited Kent, adm'r, v. Mason, ex'r, 79 Ill. 540.
That it is the right of a party to have incompetent testimony excluded on his objection, whenever offered: C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501.
That testimony that Gould “was a close, hard collector,” should have been excluded; it tended to excite the prejudice of the jury and did not tend to prove the fact of payment: Anderson v. Rome, & Watertown R. R. Co. N. Y. 334.
Upon the question of objection to interrogatories because leading: 1 Greenl'f Ev. § 434.
As to the right of the husband of one of the heirs of the deceased to testify for the estate: Cutright et al. v. Stanford, et al. 81 Ill. 240.
That where there is a total lack of evidence upon any material point in the case it is the duty of the Court to so instruct the jury if asked: Stowell v. Beagle, 79 Ill. 525.
The fact that the notes were never assigned and were in possession of the deceased during his life-time and found among his papers at his death is strong evidence that they were his property: Thompson v. Hoagland et al. 65 Ill. 310.
Messrs. stewart & Phelps, for appellee; argued that possession of the notes is only prima facie evidence of ownership, and cited Story on Promissory Notes, § 381.
That the husband of an heir to an estate may testify on behalf of the estate: Kent, adm'r, v. Mason ex'r, 79 Ill. 540.
It is for the jury to decide what the evidence proves, and instructions which endeavor to usurp their province, are erroneous: Frasure v. Zimmerly, 25 Ill. 202; Winne v. Hammond, 37 Ill. 99; Dart et al. v. Horn, 20 Ill. 212; Duffield v. Delancey, 36 Ill. 258.
That the instructions asked for by appellant could not have failed to mislead the jury and were properly refused: Hosley v. Brooks et al. 20 Ill. 116; Harris et al. v. Miner, 28 Ill. 136; Baxter v. The People, 3 Gilm. 368; Stout v. McAdams, 2 Scam. 67; Denman v. Bloomer, 11 Ill. 177; C. B. & Q. R. R. Co. v. George, 19 Ill. 510; Pfund v. Zimmerman, 29 Ill. 269.
Where the evidence is conflicting, the verdict will not be set aside: Morgan v. Ryerson, 20 Ill. 343; Milliken v. Taylor, 53 Ill. 509; Chicago v. Garrison, 52 Ill. 516; Voltz v. Stephani, 46 Ill. 54; Bagely v. McClure, 46 Ill. 381; Baker v. Robinson, 49 Ill. 299; Chicago v. Smith, 48 Ill. 107; Crain v. Wright, 46 Ill. 107; McCarthy v. Mooney, 49 Ill. 247; Keith v. Fink, 47 Ill. 272; Hope Ins. Co. v. Lonergan, 48 Ill. 49.
Where substantial justice has been done, a judgment will not be reversed merely because proper instructions were refused: Schwarz v. Schwarz, 26 Ill. 81; Hall v. Groufe, 52 Ill. 421.
Where a case has been twice tried with the same result, and it is apparent that a re-trial will not change the result, the judgment will not be reversed, although there was error in some of the instructions or evidence: Pahlman v. King, 49 Ill. 266; Rankin v. Saylor, 49 Ill. 451; Watson v. Woolverton, 41 Ill. 241; Potter v. Potter, 41 Ill. 80; Coursen v. Ely, 37 Ill. 338; Root v. Curtis, 38 Ill. 192.
Where substantial justice appears to have been done, the judgment will not be disturbed, even if the jury have found against the weight of evidence: Leigh v. Hodges, 3 Scam. 15; Gillett v. Sweat, 1 Gilm. 475; Elam v. Badger, 23 Ill. 498; Dishon v. Schorr, 19 Ill. 59; Schultz v. Lepage, 21 Ill. 160; Boynton v. Phelps, 52 Ill. 210.
This was an action commenced in the Probate Court of Warren county, in May 1872, to recover upon two promissory notes executed by Jeremiah Mason, in his life-time, to Sylvester S. Gould, deceased. One for the sum of $1,200, dated Jan'y 9, 1860, payable in two years after date, and the other for $400, dated May 24, 1860, due in one year from the date of it.
The cause was tried in the Probate Court December, 1874, where a verdict was rendered in favor of the plaintiff for the amount due on the notes. An appeal was taken from the judgment rendered upon the verdict to the Circuit Court of Warren county, and a trial was there had before a jury which resulted in a verdict for the defendant in that court. The case was appealed to the Supreme Court, where that judgment was reversed, and the couse was remanded, and again in September, 1877, tried in the Circuit Court with the same result. To reverse this judgment, Gould's Administrator has appealed to this court, and assigned several errors for setting aside the verdict of the jury, and the judgment of the Circuit Court.
Mason in his lifetime executed a deed of trust on the S. E. qr. of Sec. 17, T. 10, N. R. 4 E., to Zeno E. Spring, as trustee, to secure the payment of the $1,200 note. The $400 note was given without any security. At the time of the execution of the deed of trust to Spring the land described in it was incumbered by judgments and other liens, among which was a deed of trust dated May 26, 1859, executed by Mason to Jacob D. Hand, as trustee, to secure the payment of a note to William H. Kellogg for $1,437. Another executed by Mason to Hand, as trustee, to secure a note payable to Sylvester Reed for $732.65, dated Feb. 19, 1859. These deeds of trust covered also the southwest qr. of Sec. 2, T. 9 N. and R. 4 E. in Knox county, on which tract there were other incumbrances. The trustee in the last two deeds of trust, after the notes which they were given to secure became due, sold the lands described in them-- the southwest qr. of Sec. 2, except 34 acres,--to Quincy H. Drum for the sum of $2,000, and the southeast qr. of Sec. 17 to Leander Douglas (the attorney of Mason), for $925. On a settlement afterward made between Drum, Douglas and Mason, and Mason and wife, in respect to homestead exemption and dower of Mrs. Mason, several conveyances were interchanged to and by each of the parties engaged in the arrangement.
The defense set up, was that the notes sued on were either owned by Drum or that he was acting as the agent of Gould, and that they were taken into account and paid to Drum in the settlement and exchange of deeds by him, Douglas and Mason and wife.
The notes were never indorsed, but remained in Gould's possession and were found after his death, which occurred in 1870, in a desk together with the deed of trust to Spring, (which had not been released) among his other papers.
For the purpose of showing that these notes had been paid and not surrendered by Gould to Mason, the Court permitted the appellee (against the objection of appellant) to read to the jury in the deposition of Wm. H. Kellogg that a certificate of deposit or receipt given by him to Gould for $1,200, in the fall of 1870 was soon after that paid by him to Gould, without the latter surrendering up to the former the certificate of deposit or receipt at the time of payment, and the reason assigned was that Gould said “his woman had got hold of some of his papers and notes and had left; that he could not find the receipt; also that the witness paid a note of his for two or three hundred dollars to Gould, that could not be found. On the first trial in the Circuit Court, the appellant asked the Court, to instruct the jury as follows:
9. “The fact, if proven, that the witness Kellogg was indebted...
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Manning v. Sch. Dist. No. 6 of Ft. Atkinson
...the memorandum may be used as an independent evidentiary instrument. Insurance Companies v. Weide, 14 Wall. 375, 20 L. Ed. 894;Kent v. Mason, 1 Ill. App. 466. This court has adopted what may be called the middle course, the one supported, as it is believed, by the great weight of authority.......