West Chicago Alcohol Works v. Sheer

Wilson, J. The main — indeed, the only controverted question of fact in the case — was as to whether or not the parties made the alleged agreement. The plaintiff below testified positively to the making of the lease and to its terms, while the president of the company was equally positive in his denial that any agreement whatever was made with the plaintiff. They were respectively corroborated, more or less, by other witnesses and by the facts and circumstances surrounding the case. This conflict in the evidence necessarily involved the credibility of the witnesses, and it was thus a case coming peculiarly within the province of a jury to pass upon. With the finding of the jury the court should not interfere, unless the verdict is manifestly against the preponderance of the evidence. We cannot say that it is so, and must therefore hold that the making of the lease as claimed by the plaintiff is to be considered as established. As no complaint is made of the instructions given by the 'court to the jury,it remains to be considered first, whether the court erred in its rulings upon the admission of testimony; and secondly, whether the plaintiff was entitled to interest. It is urged by the learned counsel for the plaintiff in error, that the court erred in admitting evidence of the declaration of the president of the company made subsequently to the time of the making of the lease; and we have been furnished with a printed brief on the part of the defendant in error in support of the competency of the testimony. It seems to have escaped the notice of the counsel on both sides that the testimony complained of was admitted with the express consent of the attorney who tried the case for the defendant. The bill of exceptions shows that while objection to the testimony when first offered was made, the objection was subsequently withdrawn, and full consent was given by the defendant’s attorney to the admission of the testiihony. The competency of evidence admitted by consent cannot be afterwards called in question. It is next urged by the plaintiff in error*, that the court below erred in holding that interest was allowable on the claim of defendant in error. From plaintiff in error’s view of the case, certainly interest should not be allowed, for its view excludes the allowance of the principal; but from defendant in error’s view of the case, which we must assume to be the true one, we are of the opinion that it was competent to allow interest. There was no material disagreement as to the terms of the lease. The dispute was as to whether any lease was in fact made. In finding that the lease was made, the jury necessarily found that its terms were those testified to by the plaintiff. By the terms of the agreement as thus found, the defendant contracted to pay the plaintiff a fixed and stipulated sum for the rental of the premises from Oct. 7, 1876, to May 1, 1877. The amount thus stipulated became liquidated by the terms of the agreement itself. Nothing further was necessary to be done to make it a liquidated account, and, under our statute, interest is properly allowable where the account has been liquidated between the parties. The case is brought directly within Maltman v. Williamson, 69 Ill. 423, which was a suit brought to recover the agreed price of fifty barrels of apples sold to the defendant for cash on delivery. The court say: “ This was not an open or running account, but a certain definite sum, due at a specified time. On this, under the statute, interest was allowable.” So, also, in Clark v. Dutton, 69 Ill. 521, where the defendant, being indebted to the plaintiff for certain articles of personal property and money, for which he agreed to give his promissory note, but refused to do so, the court held that it did not require the execution of the note to liquidate the claim; that a debt is liquidated when it is made certain by the agreement of the parties how much is due and when it is payable, and the plaintiff was allowed to recover interest. To the same effect is the case of Ditch, Adm’r, v. Vollhardt, 82 Ill. 134, in which it was held that where the sum due from one party to another is fixed, certain and agreed upon, interest is recoverable thereon after it is due. These" cases are decisive of the present case in respect to the allowance of interest. It is further objected, that the court erred in allowing a witness to make a computation and testify as to the amount of interest due. This objection is without any force. The evidence is admitted merely to aid the jury in making a more speedy computation, and thereby to facilitate the despatch of business. The jury are not bound by the computation thus made by the witness, as it seems they were not in the present instance, but are themselves to ultimately determine what is the true amount of the plaintiff’s damages. Perceiving no error in the record, the judgment of the court below must be affirmed. Judgment affirmed.