Johnston v. Sochurek

Mr. Presiding Justice Ball

delivered the opinion of the court.

The testimony of appellee made a p7'ima faoie case in his favor. But he is directly contradicted by appellant in every important particular. Two witnesses also testify, that in a former trial of this case appellee swore that he had never seen appellant until in August of 1896, when a lien notice was served upon the latter, a.nd that he bad never had any conversation with appellant concerning this account. Appellee did not see fit to deny this evidence. He therefore must be held to admit that he so swore upon such former trial.

Here is more than a mere contradiction. He who under one oath knowingly affirms a proposition, and under another oath knowingly negates the saíne proposition, is not to be credited in either instance. The one statement neutralizes the other; and in a court of justice his evidence is entitled to no weight unless corroborated.

The plaintiff must make out his case by a preponderance of the evidence. Where the verdict is palpably and manifestly against the weight of the evidence, it is the duty of the trial judge to set it aside and to grant a new trial. If he fail to do so, that duty, upon appeal, devolves upon us. The verdict in this case is clearly .against the weight' of the evidence, and must be set aside. The authorities upon this subject are collected by Justice Windes in West Chi. St. R. Co. v. Lieserowitz, 99 Ill. App. 591, 595.

The judgment of the Circuit Court is reversed and the cause is remanded.