Gen. No. 14,407 | Ill. App. Ct. | Feb 16, 1909
delivered the opinion of the court.
The only question presented by the record is whether the weight of the evidence justifies the verdict and judgment. We are satisfied from an examination of the evidence that a new trial should be awarded. The judgment is inconsistent with any possible theory of the case consistent with the evidence. The evidence justifies a verdict and judgment for $500 in favor of the plaintiff, or a verdict for the defendant. It is an action ex contractu, and if the jury were justified in finding against the defendant it should have been for $500. The evidence as to the $200 is more definite and clear than that relating to the $300 item which the jury appears to have adopted as the basis of its verdict. Furthermore, the preponderance of the evidence in our opinion, is against the verdict. The jury, as it seems to us, has transgressed the rule applicable to the case in awarding the damages expressed in their verdict. We have no hesitation in setting aside the verdict. The court erred in overruling the motion for a new trial.
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.