Plano Manufacturing Co. v. Parmenter , 56 Ill. App. 258 ( 1894 )

Mb. Justice Harkeb

delivered the opinion of the Court.

This case has been here twice before and is reported in 32 Ill. App. 633 and 39 Ill. App. 270. The suit was commenced before a justice of the peace by appellant to recover the price of a mower claimed to have been shipped to and received by appellee. We refer to the opinions of this court reported in the 32d and 39th volumes of the Appellate Court Reports for a full statement of the facts. The controversy is exclusively one of fact. Four times has it been submitted to a jury and decided each time in favor of appellee. The judgments'heretofore entered were reversed by this court, because of errors committed by the Circuit Court during the progress of the trial. Although we said in our last opinion that the verdict was manifestly against the weight of the evidence, we reversed the judgment for other reasons.

One of the errors as now alleged, is that the court improperly refused to admit the-testimony of Wm. H. McCann from a bill of exceptions made on a former trial of the cause.

He was, it was claimed, absent from the State. For two reasons, the court properly refused to admit the testimony. It was not sufficiently made to appear that McCann was without the jurisdiction of the court; nor was it shown that the testimony of McCann as contained in the bill of exceptions was correct, as taken at the former trial.

Although appellant offered an instruction to the effect that the settlement sheet admitted in evidence was presumed to be correct, and that in order to disprove any statement contained in it, it devolved upon the defendant to do so by a preponderance of the evidence, was the law, its refusal was not error, for the reason that the same proposition was given to the jury in another instruction as modified by the court.

Several instructions given for appellee are criticised as giving undue prominence to certain disputed facts, but we do not think them subject, to that objection. We think the record is free from error as to the admission of evidence arid the giving of instructions. The appellant has had a fair trial. It is impossible to reconcile the testimony. In the great conflict between the witnesses, the jury has decided just as four other juries had decided, and we do not feel disposed, under the circumstances, to disturb the finding. Judgment affirmed.