| Ill. | Sep 15, 1875
delivered the opinion of the Court:
This was an action of assumpsit, brought by appellee against appellant, to recover for labor performed in the manufacture of certain furniture.
A trial of the cause before a jury resulted in a verdict and judgment in appellee’s favor for $153.08, which the appellant seeks to reverse upon two grounds: first, that the verdict is against the evidence; second, improper conduct on the part of one of the jurors during the progress of the trial of the cause.
The controversy between the parties grows out of the fact that they do not agree in regard to the contract under •which the furniture was made.
The appellee testified that he was to be paid for his labor at the rate of three dollars per day, and thát the furniture was to be made by hand, and after the German fashion; while, on the other hand, appellant testified the furniture in question was to be made for sixty dollars, and appellee was to be paid in the rent of a house which he was at the time occupying, belonging to appellant, and nothing was said on the other two points.
The result of the case, therefore, depended to a great extent upon the veracity of the parties to the record.
If the evidence given by appellee was entitled to the greater degree of credit before the jury, the verdictwould necessarily be in his favor; but if appellant was more credible, then no recovery could be had.
The credibility of witnesses is always a question for the jury. It was, therefore, for the jury to determine, from the appearance of the two witnesses upon the stand, their manner of testifying, etc., which one of the two they would believe. This they had done by their verdict, and where there is as clear and glaring a conflict in the evidence upon the main question in the case as is presented by this record, it is no part of the duty of an appellate court to disturb the finding of the circuit court.
The record, however, discloses several facts which, no doubt, had great weight with the jury in turning the scale in appellee’s favor.
The appellee commenced to occupy a house belonging to appellant, January 9, 1873, at a rental of §8 or §10 per month, which he occupied until the following September. If the contract price of the furniture was, as claimed by appellant, to be but §60, it would be fully paid by the rent. It, however, appears by the evidence that from February to the 19th day of August, while the work on the furniture was in progress, appellant paid to appellee, in cash, various sums, amounting in the aggregate to the sum of $60, as sworn to by appellee, and $80, as claimed by appellant. If appellant’s version of the contract be the correct one, it seems 'strange that he would have paid appellee the amount of money the record shows was paid, when, at the same time, appellee was paid in rents for the contract price of the work.
It was also claimed that the furniture was not made in a workmanlike manner, and evidence was introduced tending to establish that fact. On the other hand, evidence was introduced tending to show the workmanship to be good, and that the furniture was made in a proper manner. But however the fact may be, the record shows no such preponderanee in favor of appellant as to justify a reversal of the judgment.
It is, however, claimed that the judgment should be reversed for the reason that, while the trial was in progress, one of the jurors, without permission, visited the place where the furniture was stored and made an examination of it for himself.
It is not claimed that this act of the juror was done with the knowledge or consent of appellee or his attorney; on the contrary, the affidavits filed clearly show sijch was not the case.
The juror had no right, without the consent of the parties, to examine the furniture. On the trial of a cause the jury must rely upon the evidence introduced’in court; they can not go outside for the purpose of getting facts upon which to base a verdict.
But it appears that appellant was informed of the irregular conduct of the juror while the cause was on trial, and before it was finally submitted to the jury. Under such circumstances it was the duty of appellant to notify the court of the conduct of the juror, and interpose an objection to the trial proceeding before a juror who had been guilty of conduct which was likely to interfere with a fair and impartial administration of justice.
This, however, he failed to do, but remained silent, and speculated upon the chances of a successful verdict in his favor, predicated upon the superior information the juror had obtained in an unlawful manner. By remaining silent, when it was his duty to speak, he has waived the right now to object.
It was held in the case of Van Blaricum v. The People, 16 Ill. 364" date_filed="1855-06-15" court="Ill." case_name="Van Blaricum v. People">16 Ill. 364, that a party had a right to have a cause tried by a partial jury, if he saw proper. . So here, after appellant received notice of the conduct of the juror, if he saw proper to have him pass upon his case it was his right to do so.
At all events, his silence, after he became aware of the improper conduct of the juror, must be regarded as a waiver of the irregularity.
As the record discloses no substantial error, the judgment will be affirmed.
Judgment affirmed.