Tipton v. Utley

59 Ill. 25

• Court: Illinois Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

We do not think there is any variance between the note described in the declaration and the one offered in evidence. The note described in the declaration is one payable in twelve months after date, and the one offered in evidence is payable twelve months after date. The legal effect is the same. Neither would become due until after the expiration of twelve months from the date of the note.

It has been held by this court, that where the declaration describes the note as payable on or before a certain day, and the one offered in evidence w'as payable on a certain day, there was no variance between the declaration and the proof. Morton v. Tenny, 16 Ill. 494.

It may be that a note made payable in twelve months after date, could be legally discharged by the payer before the expiration of the time the note has to run; but that fact would not make the note become due at any earlier date than if the note had been made payable twelve months after date. The note is substantially described in the declaration according to its legal effect, and that is all the law requires. We will indulge in no metaphysical distinctions to defeat the ends of justice.

It is insisted that the j'udgment is too large, by the sum of eighteen cents. The excess in the judgment is simply an error in the computation of the amount found to be due on the note. The amount is too trifling to be made the ground for the reversal of the judgment. The objection is without any merits whatever.

The only serious question that can arise on this record, is, whether the evidence is sufficient to sustain the verdict on the plea in abatement to the writ of attachment.

After a careful consideration of the evidence, we can not say that it fails to sustain the finding of the jury. It can not be denied that there is evidence tending to prove the issues on the part of the appellee. Although the evidence is slight, we can not say that it does not warrant the conclusion reached by the jury. The rule is well established, that where there is a contrariety of evidence, we must regard the verdict as settling the controverted facts. This case affords no sufficient reasons for a departure from that rule.

Upon a full consideration of the whole case, we are of opinion that, substantially, justice has been done, and the judgment must be affirmed.

Judgment affirmed.