Hanke v. Cobiskey

57 Ill. App. 267, 1894 Ill. App. LEXIS 272

• Court: Appellate Court of Illinois
• Decided: January 10, 1895
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion oe the Court.

This was a suit for a’balance claimed to be due for wages. Hothing was in dispu fce except the amount that had been paid. It was admitted that the original indebtedness was $1,068.20. The parties themselves were the only witnesses and differed in their testimony only as to how much had been paid on the account. The defendant admitted that there was a balance of $80.20 due to the plaintiff, and the plaintiff claimed $145.70, making a difference between the two of $65.50.

The cause was heard by the court without a jury and judgment was rendered for the balance claimed by appellee, the plaintiff.

It is contended by appellant that the court erred in not holding that the plaintiff had not sustained his claim by a preponderance of the evidence. The rule is just the reverse where payment of an originally admitted claim is relied upon. “ The burden of introducing evidence on any issue is upon him who asserts the affirmative of that issue.” Smith v. Grant, 30 Ill. App. 150.

Here an indebtedness was admitted to have originally existed. The defense was payment down to a sum less than what was claimed by plaintiff, and the affirmative of the issue so presented was upon the defendant. Witner v. Zeman, 30 Ill. App. 195; Johnson v. Breaton, 1 Ill. App. 293.

The question of credibility of witnesses is also raised, but that is a question of fact for a jury, or for the court when a jury is waived.

It is not true, as a matter of law, that unimpeached witnesses aíre of equal credibility, but the credibility of witnesses is always a question of fact. Johnson v. People, 40 Ill. App. 382; same case, 140 Ill. 350.

The court having found the fact upon conflicting evidence the finding will not be disturbed.