Hawley v. Kettlewell , 47 Ill. App. 468 ( 1893 )

Mr. Justice Sample.

The case is quite peculiar in this, that Hawley should not only release the trust deed securing the notes, but also deliver up the notes to Kettlewell and at the same time expect him to pay a balance due thereon at his convenience. There is no evidence in this record that at the time of the surrender of the notes, Kettlewell agreed to pay Hawley any balance. In fact, there is no evidence of an agreement to pay Hawley any money after the surrender of the notes. This question was propounded to Quarton: “ Did Mr. Kettlewell ever say anything to you about paying anything to Mr. Hawley ?” A. “I don’t know whether he did or not.”

When it is claimed Kettlewell paid some money and delivered a certifícate of deposit for §100 to Hawley, Jr., in November, 1889, he did not say what it was for, or that he would pay any more money. What Hawley, Jr., said on that subject, were his own conclusions or statements, made on information derived from his father.

While the appellant doubtless honestly believes that he has a legal and just claim against the estate of Kettlewell, yet under the evidence in this record, showing the voluntary surrender of the notes, under no claimed misapprehension or mistake, we do not .believe another jury will look with any degree of favor on the presentation of the claim for a balance due on such notes, after his old friend and neighbor had died. Two juries and courts have passed upon the facts in this case; they were brought face to face with the witnesses. It was for the jury to say whom they would believe, and as the question involved was wholly one of fact we are not disposed, especially in view of the peculiarity of this claim, to disturb the verdict or the judgment of the court below thereon. We have examined the instruction. offered on behalf of the plaintiff and refused by the court, of which refusal complaint is made in the argument.

The instruction refused was in substance given in another instruction. There being no error in the record, the judgment is affirmed.

Judgment affirmed.