Howe v. Stratton

Appellate Court of Illinois

Howe v. Stratton

107 Ill. App. 281, 1903 Ill. App. LEXIS 436

DecidedMarch 19, 1903

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Bluebook

Howe v. Stratton, 107 Ill. App. 281, 1903 Ill. App. LEXIS 436 (Ill. Ct. App. 1903).

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Opinion

Mr. Presidtno Justice Ball

delivered the opinion of the court.

While the testimony is conflicting, there is ample evidence in the record, if believed by the jury, to sustain the verdict. The question submitted to the jury was purely one of fact. The verdict thereon will not be set aside by an appellate tribunal, where the evidence is conflicting, unless it is clearly against the weight of the evidence. Green v. Mumper, 138 Ill. 434.

Further, on the motion for a new trial defendants alleged that the verdict was against the evidence. In such a case the trial judge reviews the testimony, considers the manner and intelligence of the witnesses, and all the other facts and circumstances of the trial which tend to contradict or to support the evidence given, and then decides the motion. Having so done, his decision upon appeal is entitled to great consideration, and will not be disturbed unless it appears to be clearly and palpably against the weight of the evidence. When there is no more than a doubt as to the correctness of the finding, it is never disturbed.

By its special finding the jury decided that Mrs. Howe did not agree to pay for these goods. That finding is not repugnant to the general verdict. Suppose she did not promise; she made a payment upon account within five years next prior to the date when this action was commenced. It is inherent in the general verdict that she was a joint promisor. 'A partial payment will remove the bar of the statute of limitations as to the joint debtor who makes it. Kallenbach v. Dickinson, 100 Ill. 427. Where she got the money to make the payment is immaterial, so long as she paid it upon the joint account.

We have carefully examined the instructions given, and those refused. The former are fair and fully state the law applicable to the facts; the latter were properly refused.

There is nothing in the remarks of the court, to which objection is made, when taken in connection with the instructions given, that could have misled the jury.

Finding no substantial error in the record, the judgment of the court below must be affirmed.

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Mr. Presidtno Justice Ball

delivered the opinion of the court.

While the testimony is conflicting, there is ample evidence in the record, if believed by the jury, to sustain the verdict. The question submitted to the jury was purely one of fact. The verdict thereon will not be set aside by an appellate tribunal, where the evidence is conflicting, unless it is clearly against the weight of the evidence. Green v. Mumper, 138 Ill. 434.

Further, on the motion for a new trial defendants alleged that the verdict was against the evidence. In such a case the trial judge reviews the testimony, considers the manner and intelligence of the witnesses, and all the other facts and circumstances of the trial which tend to contradict or to support the evidence given, and then decides the motion. Having so done, his decision upon appeal is entitled to great consideration, and will not be disturbed unless it appears to be clearly and palpably against the weight of the evidence. When there is no more than a doubt as to the correctness of the finding, it is never disturbed.

By its special finding the jury decided that Mrs. Howe did not agree to pay for these goods. That finding is not repugnant to the general verdict. Suppose she did not promise; she made a payment upon account within five years next prior to the date when this action was commenced. It is inherent in the general verdict that she was a joint promisor. 'A partial payment will remove the bar of the statute of limitations as to the joint debtor who makes it. Kallenbach v. Dickinson, 100 Ill. 427. Where she got the money to make the payment is immaterial, so long as she paid it upon the joint account.

We have carefully examined the instructions given, and those refused. The former are fair and fully state the law applicable to the facts; the latter were properly refused.

There is nothing in the remarks of the court, to which objection is made, when taken in connection with the instructions given, that could have misled the jury.

Finding no substantial error in the record, the judgment of the court below must be affirmed.

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107 Ill. App. 281, 1903 Ill. App. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-stratton-illappct-1903.

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