Peterson v. Lubliner , 163 Ill. App. 38 ( 1911 )

Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error against the plaintiffs in error for the value of certain garden plants sold by the former to the latter. There was a trial before the court without a jury, and a finding for the defendant in error and judgment upon the finding.

We are asked to reverse the judgment upon the ground that it is against the weight of the evidence. The judgment is for $56.75. Defendants admit an indebtedness of $18.75, and insist that the plants were sold by by sample, that the goods received were not up to the sample, with the exception of a portion of them which amounted in value to $18.75, and that the remainder were returned to the defendant in error.

The testimony on the part of the defendant in error consisted of a deposition made by J. A. Peterson, the defendant in error, and the answers to interrogatories propounded to the defendants below, which answers were made part of the case of the plaintiff below, who is the defendant in error here.

Upon examination of the record we are satsified that the finding of the court is not justified by the evidence. It is apparent that there should be a judgment for some amount in favor of the defendant in error, but we are unable to say just what this amount should he. Additional evidence on a hew trial should disclose it.

The judgment is therefore reversed and the cause remanded.

Reversed and demanded.