98 Ill. App. 143 | Ill. App. Ct. | 1901
delivered the opinion of the court.
But two questions are presented upon this appeal, viz., whether the evidence sustains the verdict of the jury, and whether the court erred in admitting evidence. We are of opinion that the evidence sufficiently sustains the verdict. If the testimony of Heifron is credited, appellant evicted his tenant, Brady, and thereby released appellee’s testator from his liability as a surety upon the lease for any rent thereafter to accrue.
Heifron testified positively that appellant put him in possession of the premises in question, and in so doing informed the employes of Brady that he, Heifron, was in possession, and that thereupon the premises were surrendered by Brady’s employes to Heifron. If this be true, it was clearly an eviction of the tenant, Brady, by the landlord, appellant. The fact that Brady was absent is of no consequence, for he was still in possession of the premises through his agents, the two barkeepers who were conducting his saloon business upon the premises. It is true that appellant contradicted Heifron in all the material parts of his testimony, but this merely left the determination of the issue to depend upon the relative credibility of the testimony of Heifron and appellant. This was a question for the jury, and we can not say that the conclusion reached by them and expressed by the general verdict is unwarranted. Doubtless the fact that appellant had failed upon a former trial to contradict like testimony given by Heifron upon this controlling question, had its influence on the determination of the jury as to the credibility to be accorded the witnesses. It was sought to explain the failure by the fact that the former trial was had upon a short cause calendar, and that time was scant. But the credibilit)'- of the -witnesses was a matter for the determination of the jury, and we can not say that their verdict is against the weight of the evidence, or that the affirmative defense is lacking a preponderance of the evidence. Preponderance of evidence may result from the discrediting of witnesses, as well as from a comparison of numbers.
The lease to Brady contained a provision to the effect that in the event that the lessee abandoned the premises, the lessor might lease to another and hold the lessee liable for any deficiency in the rent received. But if the testimony of Heffron be credited, there was no abandonment by Brady, but an eviction by appellant.
It is urged by the learned counsel for appellant that the court erred in admitting over objection certain testimony of Heffron. The witness was asked how he happened to take the receipts running to Brady, and was permitted to answer that appellant had said to him that he ought to have the Brady lease out of the way, and that witness had replied that he didn’t care as long as he was in possession how appellant made the receipts. It is argued that this evidence was incompetent. We are of opinion that there is no assignment of error which reaches this matter. But, if there were, we think that the error-would not be well assigned, for it is competent to explain receipts by parol. Skaife v. Jackson, 3 Barn. & C. 421; Carr v. Miner, 42 Ill. 179; Rand v. Scofield, 43 Ill. 167; Reading v. Traver, 83 Ill. 372; Paris v. Lewis, 85 Ill. 597.
Ho other question is raised as to the procedure.
The judgment is affirmed.