Hubbard v. Hubbard , 1898 Ill. App. LEXIS 239 ( 1898 )

Mr. Presiding Justice Windes

delivered the opinion of the court.

Appellant’s counsel says- that the only question in the case is, does the evidence taken before the master show that appellant has been released from liability under the decree of October 15, 1890, in appellee’s favor.

Appellee, in her dealings and agreement with the Curio Company, only agreed to credit appellant on the decree whatever sums were paid to her by the company, less expenses of collecting, and the express reservation was made that he was not, by reason of the contract, to be in any way released from liability upon said decree for any sums the said company might fail to pay.

Atkins’ agreement with appellee to pay her $3,000 in full to satisfy the decree in appellee’s favor, was never performed by him, and appellee’s release of Atkins and the (Jurio Company from their respective liabilities to her, in no way affected the liability of appellant under the decree for amounts not paid by the company or Atkins.

As to the execution of the alleged release of appellant by appellee, there is a direct conflict of evidence between appellee on the one part and the witnesses Potter and Ballard for appellant. We think appellee is corroborated by circumstances testified to by the witnesses, and we are not prepared to hold that the finding of the master and the court, in this regard, is not supported by the weight of the evidence, which we must do before we would be justified in reversing it. The witnesses were before the master and heard by him, and when such is the case, due weight should be given because of the advantage the master derives from seeing the witnesses in' judging of their credibility. Fairbury Agl. Bd. v. Holly, 169 Ill. 12.

In 2 Beach’s Mod. Eq. Pr., Sec. 711, the author states the rule that the report of the master is merely advisory to the court, but says, “It is well settled that the conclusions of the master, depending upon the weighing of conflicting testimony, have every reasonable presumption in their favor and are not to be set aside or modified unless there clearly appears to have been error or mistake on his part.” To the same effect are the cases of Tilghman v. Proctor, 125 U. S. 136, and Camden v. Stuart, 144 U. S. 104.

The decree of the Circuit Court is affirmed.