On the thirty-first day of July, 1871, the defendant, as principal, and the plaintiff, as surety, executed and delivered to P. M. Miles, of Litchfield, Illinois, a promissory note for $1,000 and interest. In 1875 judgment was recovered against the surety on said note. The surеty having paid the same, brought an action against the defendant, in the district court of Dodge county, to recover the amount of the judgment and costs.
The defendant, in his answer, admits the execution of the note, but alleges that on or about the first day of March, 1875, the plaintiff offered to pay said note, if
On the trial of the cause, the jury returned a verdict for the defendant, uрon which judgment was entered. The cause is brought into this court by petition in error.
The character of the сonveyance of the real estate in controversy is the only matter in dispute, the defendant insisting that it was in full sаtisfaction of the debt, while the plaintiff contends that he took the title simply to enable him to convey the land, in case it could be sold for a satisfactory price.
A letter, dated March 12,1875, written by the defendant tо the plaintiff, was introduced in evidence, in which the defendant says: “Your favor of the tenth inst. is just at hand; contents noted. Should the lots not sell for enough to pay the note, I will pay the difference just as soon as I am ablе, and will make it a point to pay it the very first chance. I shouldn’t want the lots sold for a little or nothing. Get all you сan for them.”
The letter of the tenth inst. referred to, was not introduced in evidence, nor were steps taken to require its production.
On the twenty-fifth of March, 1875, one McEwen wrote to the plaintiff that he had a good сhance to sell the lots in question for a “ gas factory,” and requested him to send a deed for the same to the plaintiff. At the same time, and in the same letter, the plaintiff requested the defendant to give him a deed sо he could make a title to the property.
On the twenty-eighth of March, 1875, the defendant wrote to the plaintiff: “ I have no objection to you hav
On the fifteenth of April, 1875, the defendant wrote to the plaintiff, urging him to send him the note upon which the plaintiff was surety.
On the eleventh of May, 187(5, the defendant, in answer to a letter writtеn to him by one Jones, an attorney for the plaintiff, says: “I thought that the five lots that I had would more than pay the note off. Mr. Lea wrote me and said that he had a chance to sell them, and requested me to make him а deed for them. I did so, thinking it would square the matter up. As soon as he got the deed to the lots, I was informed that he hаd no chance to sell them. * * * I wish that I could square the matter up and have done with it.” The letter to which this was an answer was not introduced in evidence on the trial; nor does it appear that any steps were tаken by the plaintiff to require its production.
The testimony entirely fails to show that the plaintiff ever made a сontract with the defendant to accept a deed to these lots in full satisfaction of the debt. The lеtters, taken together, clearly show that the deed was delivered to Lea to enable him to sell the lots to the best advantage, and to enable him to convey the same. ■The defendant appears to have been anxious to pay the debt and save the surety harmless, so far as his means would permit. And throughout the entire transaction it is apparent that he was desirous that the property
There is no claim of bad faith on the part of the plaintiff in obtaining the title to these lots; nor is there any pretense that, at the time he obtained title to the same he had not reasonable grounds to believe that he сould sell the same to the gas company at a reasonable price. The only question at issue is that of payment, and that the proof fails to establish.
It is urged on the part of the defendant, there being a сonflict of testimony, and the jury having found in favor of the defendant, that the verdict and judgment should not be disturbed. The rule undoubtedly is, where there is sufficient testimony to sustain the verdict, that it will not be set aside as being contrary to the evidеnce simply because, in the opinion of the court, a preponderance of the testimony is against it, it being exclusively the province of the jury to weigh the evidence and judge of the credibility of witnesses. But the rule can have no application in a case like the one at bar, where there is au entire failure of proof on the part of the defendant. The judgment of the district court is reversed and the canse remanded for a new trial.
Reversed and remanded.