Wrigley v. Cornelius

Mr. Presiding Justice Gary delivered the opínion of the Court. The appellees sued the appellants for not accepting part of the goods which the appellees allege that the appellants contracted to buy from the appellees. The first head of the appellants’ brief is: “ The improper admission of evidence.” The abstract shows no exception to the admission of any evidence. Second. “ The refusal of proper instructions on the question of the burden of proof.” Those instructions are: “ The jury are instructed that the burden of proof in this class of cases is always upon the party holding the affirmative; and any matter asserted by one party and denied by the other can only be proved in law by a preponderance of the evidence, and in this case, if the jury find from the evidence that the plaintiff has proved the alleged contract by only one witness, and that the contract has been denied by one witness of equal credibility and means of knowledge, then, as a matter of law, such contract has not been proved, unless in the minds of the jury there have been facts or circumstances proved corroborating the plaintiff’s witness sufficient to outweigh the testimony on the part of the defendant. 2. If you believe from the evidence that the plaintiff has sworn positively that the defendant ordered ten thousand of the pictures in controversy from the plaintiff, and that the defendant has sworn just as positively that he did not order ten thousand of the pictures in controversy from the plaintiff, and if you further find from the consideration of the evidence in the case that the testimony of the defendant is entitled to as much credit as that of the plaintiff, and corroborated to the same extent, then, so far as that point is concerned, you should find for the defendant.” Johnson v. People, 40 Ill. App. 382, 140 Ill. 350, is a complete answer. Credibility of witnesses is for the jury. The really serious question in the case is under the third : “ The necessity of notice of resale.” We shall not enter upon the task of reconciling, or extracting the true rule from the many cases on that subject. The evidence is that on the refusal to accept, one of the appellees asked one of the appellants what he (appellee) should do with the rest, and the reply was that he didn’t care what —do what appellees chose. This waived notice, and only required appellees to show that they disposed of the residue in good faith and with reasonable prudence and discretion. The bill of particulars is not before us, not being in the bill of exceptions. Bowland v. Lambka, 57 Ill. App. 334. The judgment is affirmed.