Volk v. Roche
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8603,70 Ill. 297 |
| Parties | LEONARD W. VOLK et al.v.JAMES A. ROCHE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. CHARLES H. WOOD, Judge, presiding.
This was an action of assumpsit, by James A. Roche against Leonard W. Volk, John Feeny and Edward Burkhardt, upon a promissory note. The opinion of the court contains a statement of the points involved. The defendants appealed.
Messrs. KING, SCOTT & PAYSON, for the appellants.
Messrs. SNOWHOOK & GRAY, for the appellee.
Appellants gave to appellee a note for $1250, due at six months, with 10 per cent interest. But the note was subject to a condition, that any and all such sums of money as had been received by appellee, as a co-partner with appellants, and not charged to appellee on the books of the co-partnership previously existing between the payee and makers, with interest at the rate of 10 per cent, should be deducted from the note. Suit was brought by the payee on this note, against the makers. They filed the plea of the general issue, and a plea that plaintiff had received large sums of money, as co-partner of defendants, which were not charged on the partnership books. Also a plea of set-off, for money paid by the makers for the use of the payee. A trial was had, and a verdict was found for plaintiff, and, after overruling a motion for a new trial, the court rendered judgment on the verdict.
The evidence was conflicting, and appellants insist that the instructions were erroneous, and misled the jury. Where there is a conflict of evidence, or where it leaves it doubtful which way the jury should find, it is important that the instructions should be not only accurate, but clear and perspicuous. They should aid the jury in arriving at a correct conclusion, and should not mislead or leave them even in doubt as to the law arising on the evidence before them. In this case, we find that the first of appellee's instructions is erroneous. It informs the jury that, if the matters of defense under the condition in the note are not proved, then they should find for the plaintiff. This ignores the defense interposed by the plea of set-off, when there was evidence tending to prove it. This was well calculated to mislead the jury, and should not have been given. The third of plaintiff's instructions is vague, and well calculated to mislead. It informs the jury that, if the...
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