Choate v. Blackford

Morait, P. J. The answer set out in the foregoing statement, was responsive to the special interrogatory. The answer does not introduce new matter in evidence but states in answer to the question, the consideration paid to Charles H. Choate for the Albaugh notes, and when and how it was paid, and also the consideration for the conveyance of the equities in the lots. The answer being under oath, and answering no more than was specifically called for by the interrogatory, must stand as true until disproved. The burden was on the appellees to disprove the statements contained in the answer, in order to entitle them to a verdict against the garnishee defendant. Truitt v. Griffin, 61 Ill. 26. We have examined the record with care, and we are unable to find evidence from which it can be inferred that the garnishee was indebted to the defendant in any sum. A statement from an answer made by appellant in a certain suit in chancery was introduced, but separated from the context as it is, it is difficult to conclude that it contradicts the statements of appellant’s answer in this ease, that Charles H. Choate was indebted to him on notes secured by chattel mortgages, which he paid out to said Charles as part consideration for the Albaugh notes. That appellant makes a confused statement on his cross-examination of the amount of money which he had loaned to Charles H. Choate, is true, but we do not find anything in such statement which overcomes his answer. If the burden was on appellant to prove his answer, the testimony given by him on his cross-examination would aid him little; but the burden being on the other party, his inability to give the dates and amounts of transactions which occurred Jong previously, can not be treated as evidence contradieting the statements of his answer. Neither do we find any evidence controverting the statement that the equities in the lots conveyed to him by said Charles H. Choate, were conveyed to secure him for his liability for guaranteeing the rent. Counsel argue that he is the assignee of the lease on which he became surety, but we can find no evidence in the record that the lease ever was assigned to him. If such is the fact it should not be difficult to prove it. If his liability on the guaranty has terminated, by his becoming assignee of the lease, then he may be held to account for the value of the equities conveyed to him as indemnity against such liability. We have searched the record in vain for evidence which sustains the verdict of the jury against the answer of appellant, and counsel for appellees have entirely failed to point out any evidence which establishes that appellant was owing to defendant, or held as trustee for defendant, the amount found by the verdict or any other definite sum. The j udgment against appellant must be reversed and the cause remanded.