Redfern v. McNaul ( 1898 )

Me. Peesiding Justice Windes

delivered the opinion of the court.

Other errors are assigned, but the only one argued by appellant is the giving of the three instructions for appellee, which alone will be considered.

The statement in the bill of exceptions that the plaintiff tendered evidence tending to support the various hypotheses set forth in the plaintiff’s instructions, and the defendant did likewise as to his instructions, and that the evidence on either side, if believed by the jury, would have warranted a verdict either for the plaintiff or the defendant, justified the giving of instructions upon each and all the various hypotheses stated in the plaintiff’s instructions (Eames v. Rend, 105 Ill. 506-9), notwithstanding the contradictory statement in the bill of exceptions that there was no evidence before the jury that the defendant knew anything about the origin of the money given to him for the purchase of the said stock mentioned in the plaintiff’s instructions. The bill of exceptions is in the nature of a pleading of appellant, and must be construed most strongly against him. Counsel contends, however, that as the evidence was strongly conflicting, the instructions should have been accurate, and that those given for appellee are erroneous because they single out inconclusive and evidentiary facts and give prominence to them, and were therefore calculated to and did mislead the jury; that the second instruction is argumentative, fails to refer to any agreement to form a partnership, and its ending, as also the third instruction, with the words, “ and the jury will so find,” was improper, as amounting to an order to find for the plaintiff.

It seems unnecessary to discuss in detail the different points wherein it is claimed the instructions single out and give prominence to the alleged evidentiary and inconclusive facts, in view of the statement in the bill of exceptions that there was evidence tending to support the various hypotheses set forth in the instructions which, as is stated by the court in the Eames case, supra, was sufficient to justify the instructions.

We think, after full consideration of counsel’s arguments, that there is nothing misleading nor calculated to mislead the jury in the instructions; that the second instruction is' not argumentative, and that the ending of the second and third instructions was not improper. It was the duty of the jury, if the facts as stated in the second and third instructions were established by the evidence, to find for the plaintiff, and there was no error in directing it to so find. Plano Mfg. Co. v. Parmenter, 39 Ill. App. 270; R. R. Co. v. Reagan, 52 Id. 496.

The second instruction does refer to the relationship of partners between the parties, in the words “ for the joint use and ownership of plaintiff and defendant as partners,” and this was a sufficient reference to an agreement to form a partnership. The judgment is affirmed.