Arnold v. Cannon

Mr. Justice Sears delivered the opinion of the court. The giving of certain instructions, tendered by appellee, is assigned as error, and we regard the disposition of this assignment of error as determinative of the appeal. The instructions complained of are as follows: 6th. “ The jury are instructed that no presumptions or appearances of notice can be so strong as to be a notice in fact, or actual notice, when it has not been proved by the defendants to the satisfaction of the jury that the plaintiff really did have knowledge or the means of knowledge of the dissolution of the copartnership.” 7th. “The jury are instructed that no means of knowledge of the dissolution of the firm of Arnold Bros., Baker & Co., was sufficient to be regarded as actual notice to the plaintiff, unless the plaintiff knew that he had in his possession that means of ascertaining and neglected to make use of it.” The instructions were erroneous. The sixth is faulty, because it requires something more than a mere preponderance of the evidence as the basis of action by the jury, in that it makes it necessary that notice be proved “ to the satisfaction of the jury.” Stratton v. The C. C. H. Ry. Co., 95 Ill. 25; O. O. & F. V. Ry. Co. v. McMath, 4 Ill. App. 356; Bunchwitz v. Tyman, 11 Id. 187. The seventh is faulty, because it requires that notice, in order to be effectual, must have been known by appellee when received, to contain the requisite information or means of ascertaining same. In other words, it told the jury, in effect, that although documents were served upon appellee, or given to him, which were sufficient to convey notice, yet, if appellee neglected to examine the same, and did not, in fact, know what they contained, such service would be insufficient to constitute notice. It may be that, under the evidence here, the seventh instruction did not work any prejudice to appellants. It was, however, for the jury to determine whether the documents, viz., the receipts signed by appellee, were such as constituted notice, irrespective of whether appellee may have read their contents or not. It can not be said that the sixth instruction did not mislead the jury in weighing the evidence and determining the issue as to notice. The question of notice was the principal issue of fact in the case. The jury should have been accurately instructed as to the necessary proof. Questions raised as to other instructions are disposed of by the decision of this court in Arnold v. Hart, decided at March term, 1898, and not yet reported. The judgment is reversed and the cause remanded.