147 Ill. App. 500 | Ill. App. Ct. | 1909
delivered the opinion of the court.
Counsel for the defendants contend that the verdict is contrary to the preponderance of the evidence; that the court erred in rulings on evidence, and that plaintiff’s counsel made improper and prejudicial remarks in his argument to the jury.
As to the weight of the evidence, the case stands thus: The plaintiff and William A. Hirsh are interested witnesses, and the plaintiff’s testimony is flatly contradicted by Mr. Hirsh. The plaintiff testified that Mr. Hirsh said that, if plaintiff would use his influence to procure the contract with the National Biscuit Co., he should be compensated in a certain manner, while Mr. Hirsh testified positively that nothing whatever was said about influence, or about plaintiff using his influence, and that he, Mr. Hirsh, told plaintiff that if he, plaintiff, should get the contract from the National Biscuit Co. they would handle it for him, and pay him the difference in price. The testimony of Mr. Evans, a disinterested and apparently candid witness, is that the giving the contract to defendants was not, in the least, owing to any influence of the plaintiff; that plaintiff did not even mention defendants to Mm in connection with the contract, and did not bid for the contract in his own or defendant’s name, or at all. Mr. Epstein, -also a disinterested witness, contradicted the plaintiff’s testimony almost in toto. The testimony of the two disinterested witnesses is corroborative of that of Mr. Hirsh. The plaintiff is, substantially, the only witness who testified in his own favor.
In Peaslee v. Glass, 61 Ill. 94, it is said: “It be-' longs to the plaintiff to make out a case. The burden of proof is upon him, and where the issue rests upon the sworn affirmation of one party and the sworn denial of the other, both having the same means of information and both unimpeached, and testifying to a state of facts equally probable, a conscientious jury can only say that the plaintiff has failed to establish his claim. Without saying that this court would set aside a verdict for the plaintiff, rendered in such cases, on the ground alone that it was not sustained by the evidence, we must set - aside one resting only upon the evidence of the plaintiff when that is contradicted not only by the defendant, but also by another witness, and there are no elements of probability to turn the scale”. The case is cited with approval in a number of subsequent cases. It is not necessary, however, to rely on Peaslee v. Glass in support of our conclusion. Were there no such case, our conclusion in respect to the weight of the evidence would be the same, viz.: that the verdict is manifestly against the preponderance of the evidence.
Mr. Evans, when called as a witness for plaintiff, was questioned and answered, on his direct examination, as follows:
“Q. Did he ever talk with you about securing the contract for the next year?
A. Yes, sir. We entered into a contract with Hirsh, Stein & Co. for the purchase of the gelatine. Here it is”.
Counsel for defendants object that the court, on cross-examination of the witness, refused to allow him to he asked what was the talk or conversation referred to hy him, in the foregoing answer; but we fail to find in the record that any such question was asked, and, subsequently, the court permitted the question to be asked as to whether the witness had any talk, at that time, with plaintiff, about securing the contract for defendants, and the witness answered, “No, sir”. We find no prejudicial error in the ruling.
Plaintiff’s counsel, in his address to the jury, said: “Now, we find the situation substantially this; the situation of affairs. Hirsh, Stein & Co. are manufacturers of gelatine here, large manufacturers, a wealthy concern.” On objection, the court ruled against the remarks, stating there was nothing in the record showing defendants to be a wealthy concern. The reference to defendants as a wealthy concern was highly improper, and we cannot tell but that it was prejudicial to the defendants, as it was calculated to be. Chicago Union Trac. Co. v. Lauth, 216 Ill. 176, 183. Assuming that counsel for plaintiff intended no wrong, he must have forgotten the evidence, as in several-instances he misstated it to the disadvantage of the defendants. The verdict of the jury is inexplicable. If the plaintiff was entitled to recover, then, in accordance with his testimony as to what the contract was, he was entitled to recover one cent per pound on 280,458 pounds, or $2,804.58, but he is awarded only $1,422.25 by the verdict. We have avoided, as far as possible, commenting on the evidence, as the case must be remanded.
The judgment will be reversed and the cause will be remanded, appellants to recover their costs of this court.
Reversed and remanded.