Barron ex rel. Poague v. Burke

Mr. Presiding Justice Windes, after making the foregoing statement, delivered the opinion of the court. The reasons of appellant why the judgment should be reversed may be summarized, viz.: First. That on both issues the verdict and judgment are manifestly against the weight of the evidence; second, that incompetent testimony was admitted; and third, that erroneous instructions were given. The evidence is quite voluminous, and has been carefully read and considered by us in the light of the arguments of counsel. Its discussion in this opinion could serve no useful purpose, in view of our conclusion, which is that upon the merits it is insufficient to support the verdict and judgment. Its clear preponderance, in our opinion, is with appellant. As to the attachment issue, the evidence is sufficient to sustain the special findings of the jury, which are to the effect, in substance, that appellee was a resident of this State at the time of the issuance of the attachment writ. Ho point is made that there was no general verdict on the attachment issue, and it is unimportant in view of our conclusion on the merits. As there may be another trial, we think it proper to notice a question of law discussed by counsel, viz.: What constitutes a residence in this State under the meaning of the attachment act ? We think the sixteenth instruction, which says, “Where a man has a settled and fixed abode, with the intention to remain there permanently for a time, for business and other purposes, then in law such abode is his residence,” properly states the law as to what constitutes a residence in this State under the attachment act. Board of Supervisors v. Davenport, 40 Ill. 197; Wells v. People, 44 Ill. 40; Wells v. Parrott, 43 Ill. App. 656. In the Davenport case, supra, Mr. Justice Breese, in considering the question as to what constituted a residence within the meaning of the revenue law, which provided for the taxation of property “ of persons residing in this State,” said : “ There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence, within the legal meaning of the term,” and held that while the defendant’s home or domicile was in New York, he had two residences, one in Illinois and one in New York. We think the same is true as to the attachment act. In determining what was a residence under -the attachment act, this court, in the Parrott case, supra, used almost the identical language of Justice Breese above quoted. The court admitted, against appellant’s objection, certain evidence relating to a former suit between him and appellee which had been dismissed for want of prosecution, and was claimed by appellee to have been for the same cause of action as the case at bar, though denied by appellant. It was in the nature of an admission and was competent. Appellant also objected to evidence admitted by the court as to certain cases tried by an attorney named Fry, for appellee, under a contract similar, as it was claimed by him, to what the arrangement was between appellant and appellee, and also the contract. We are unable to see the materiality of this evidence, but can not say that the error, if such it was, is sufficient for that reason alone to call for a reversal. Numerous other objections are made as to the admission of evidence, that we deem of minor importance and not to require special mention. None of them are sufficient to require a reversal. Also, it is objected in this connection, that the conduct of appellee’s counsel in his remarks during the course of the trial, in the presence of the jury, in offers of different items of evidence, and in the examination of witnesses, was unfair to appellant and was calculated to prejudice him with the jury- In view of the disposition we make of this case, it becomes unnecessary to consider these objections, further than to say that appellant is not without basis for criticism in this respect; that counsel should not allow their zeal for clients to cause them to say or do anything in the excitement of trial which could be -construed as unfair or calculated unjustly to prejudice their opponents. Justice can not generally be attained by any such means. The objection to the second instruction is based upon its language as it appears in the abstract. A reference to the record shows that after the word “ begun ” at the end of its first clause, the abstract omits the words “ is upon the plaintiff.” When these words are supplied the instruction is correct. The fifth instruction is not correct in that it would debar appellant from recovering any interest after the commencement of the suit, and conflicts with the sixth instruction, which would entitle appellant to recover interest if the jury found there was unreasonable or vexatious delay. The error, however, is not material on this record, the verdict being for appellee. For the reasons stated in Eastman v. Ry. Co., 79 Ill. App. 585, the majority of the court, not including the writer, is of the opinion that the seventh instruction is erroneous, and that the giving of it is cause for reversal, because it invades the province of the jury, by telling it what evidence is the strongest, to wit, the evidence of the more intelligent and better informed witnesses. The weight of the evidence is a matter to be determined solely by the jury. It is claimed that instructions numbered 10, 12,13 and 16 are all practically on the same point; that they are repetitions, and therefore cause for reversal. The same point is also made as to instructions 2 and 11. We have seen that instruction 2 was a proper instruction. Instruction 11 is in part a repetition of Ro. 2, but adds points which were also' proper. Instruction 11 made instruction 2 wholly unnecessary, but we should be loth to reverse for that reason ■ alone. The same is true as to instructions 10 and 12, the latter being in part a repetition of the former. We find no such objection as to instructions 13 and 16. A further objection is made to instruction 16, that the use of the words “ and other purposes ” is not justified by any evidence in the case. The record tends to show that appellant’s residence at Chicago was maintained for social as well as business purposes, and we therefore think the use of these words was not improper. It is claimed there was error in submitting to the jury the third special interrogatory, because an answer to it did not determine an ultimate fact in the case.- Appellant sought to recover on a special contract, and also by reason of an alleged custom among brokers to pay a commission of twenty-five per cent for such services as he claimed to have rendered to appellee. The jury answered “ no,” to this interrogatory, and this answer therefore eliminated the latter basis of recovery from the case, and is consistent with the general verdict. Had the jury answered yes, it would have been inconsistent with the general verdict, and insufficient, under section 3 of the statute, to justify the court in disregarding the general verdict and .rendering judgment for appellant on the special finding. The answer as it stands, would not be inconsistent with a general verdict for appellant, but such an answer would be a guide to the court as to what was the basis of such a general verdict, necessarily limiting the right of recovery to the custom among brokers. We do not understand the statute relating to special findings to require, nor any decision of this or the Supreme Court to hold, that an answer to a special interrogatory must be absolutely decisive of the whole case, but only that it relate to some material question of fact in the case, and that the fact must be an ultimate fact, that is, a fact conclusive on some issue in the case. In the case of two counts on two promissory notes, éach count being upon a separate note, where the defense was payment as to one of the notes, and want of consideration as to the other, it would be entirely proper to submit to the jury a question as to whether the one note was paid and another question as to whether there was any consideration for the other note. We are of opinion this question was as to an ultimate fact in the case. The judgment. is reversed and the cause remanded, because as to the merits it is not sustained by the evidence, and because of instruction 7. Reversed and remanded.