Norton Bros. v. Eastman , 83 Ill. App. 303 ( 1899 )

Mr. Justice Sears

delivered the opinion of the court.

But two questions- are presented upon this appeal, viz.: first, is the evidence sufficient to sustain the finding of the trial court, that appellant, through its agent, Mr. Morton, undertook to pay the sum of $375 for the removing of the debris’, and second,if such undertaking was sufficiently established by the evidence, is it supported by any valid consideration, or is it without consideration and therefore nudum pactum. The evidence as to whether appellant, through Mr. Morton, made the promise and entered into the undertaking relied upon, might appear to one reviewing it as evenly balanced. Yet it can not be said that, as a matter of law, because the only evidence consisted of one witness affirming and one witness denying the fact in issue, therefore the jury or the court passing on the issues of fact, might not have found that there was a preponderance in favor of the one or the other. If it was formerly held that in such case there could be no preponderance in favor of the litigant having the burden of establishing the fact, such is no longer the rule. Durant v. Rogers, 71 Ill. 121; Durant v. Rogers, 87 Ill. 508; Dickinson v. Gray, 72 Ill. App. 55.

We can not say that the finding by the trial court upon the issues of fact is not sufficiently supported by the evidence.

There remains, then, only the question as to whether there was a sufficient consideration moving to appellant to support the promise. Mr. Dwen testified:

“I visited O. W. Morton and we had probably three-quarters of an hour conversation, and he said he would pay for a share for the removal of the debris, and I insisted on it.”

Mr. Morton testified:

“We had several conversations, and I took the ground always that we were not responsible for the wreck. The only thing I had said which could be construed at all as any promise on our part to do anything in the matter was on his claim that he had a lot of stuff there that we ought to take out. I think I suggested to him that possibly we might be responsible; if he would remove the brick and other material which covered whatever stuff we might have left there, that we would take out what property there was remaining. As to any agreement to pay any sum, I never agreed to that.”

It is apparent that there was a controversy between the parties as to the liability of appellant, and that settlement of such controversy was a sufficient consideration for a promise to pay a certain amount in discharge of the alleged liability. Nor does it matter that if the controversy had not been settled, appellant would have prevailed in the con-' tention that it was not liable. McKinley v. Watkins, 13 Ill. 140; Sigsworth v. Coulter, 18 Ill. 204; Miller v. Hawker, 66 Ill. 185; Honeyman v. Jarvis, 79 Ill. 318; Parker v. Enslow, 102 Ill. 272; Stoehlke v. Hahn, 158 Ill. 79.

It is urged by counsel for appellant that inasmuch as the appellee had never demanded of appellant more than $375, the promise to pay that amount could not be held to be a compromise of a dispute, i. e., an undertaking to pay a lesser sum in satisfaction of a disputed claim for a greater sum. The controversy here was as to the liability of appellant to remove all such parts of the debris as were made of its property, and not as to the payment of money. To settle the controversy, and in lieu of doing that which appellee insisted it should do, appellant undertook, so the court found, to pay $375. We think this constituted a sufficient consideration.

The trial court having found that there was an agreement by appellant to pay the $375, and there being sufficient consideration to support such agreement, we find no reason for disturbing the judgment. It was not error to allow the amendment of the declaration after the evidence had been heard. Appellant did not, at the time of the amendment, ask for further opportunity to present evidence. The judgment is affirmed.