Seibel v. Vaugham

Mr. Justice Scott delivered the opinion of the Court: The points upon which appellant relies for a reversal of the judgment are: 1st. The court erred in admitting improper evidence. 2d. The court erred in giving and refusing instructions. 3d. The verdict is contrary to the law and the evidence. The action was upon a promissory note, and one issue made by the complicated pleadings in the case was, there was a failure of consideration. The evidence as to the utility of the invention for which the note was given, which was admitted over the objections of appellant, seems to us to have been pertinent to the issue. But if the court erred in that regard, the evidence was of that character it could do no harm, and certainly appellant was not prejudiced by it. It was not of enough importance to be made the ground of a reversal of the judgment. It is insisted that the court erred in giving the second instruction for appellee. By it the jury, in substance, were told that, if appellant executed the note in controversy with a material portion written only in pencil, subject to be easily erased so as to leave no appearance of alteration on the face of the note, when, by ordinary care and prudence, he could have guarded against erasures, he was guilty of negligence, and could not defeat its collection in the hands of an innocent holder, who took it before maturity, without notice of any alteration. While it is true there are some slightly inaccurate expressions to be found in the instruction, nevertheless it states a correct principle of law, and is fully sustained by the adjudged cases in this court. Harvey v. Smith, 55 Ill. 224; Leech v. Nichols, ib. 273. The only serious question that could arise in the case is on the third point, viz: the verdict is contrary to the law and the evidence. But it does not appear there was any motion for a new trial. Such a motion, and exceptions to the decision of the court, must be preserved in the bill of exceptions, otherwise it can not be considered in this court. Snell v. Trustees M. E. Church, 58 Ill. 290. It may now be regarded as the settled practice in this State, that a judgment will not be reversed for insufficiency of evidence if a motion for a new trial was not made in the court below. Barnes v. Barber, 1 Gilman, 401; Smith v. Gillett, 50 Ill. 290. The alleged motion for a new trial is not preserved in the bill of exceptions, as required by the practice in this court, and no exception whatever was taken to the decision of the court. We can not, therefore, consider the point made, whether the evidence sustains the verdict. Perceiving no error in the record, the judgment is affirmed. Judgment affirmed.