Bishop v. Busse

Citations

• 69 Ill. 403

Syllabus

<p>1. New trial—on finding of the facts. This court will be cautious in the exercise of the power conferred by statute to reverse a judgment on the ground that the finding of the jury is not supported by the testimony, for the reason that it is the province of the jury to pass upon and determine the weight of evidence and to find the facts, and because the jury and the court below have better opportunity of judging of the credibility of each witness’ testimony, and the weight to he attached to it, by seeing the witnesses on the stand, and their appearance, and manner of testifying.</p> <p>3. Same—-finding not tested by-the nuinberof witnesses, alone, on each side. The question whether a verdict should be sustained or set aside as to the finding of the facts, does not depend upon the number of witnesses testifying on each side upon the disputed points. The number of witnesses may be on one side while the decided weight of evidence may be on the other.</p> <p>3. Same—rule at common law. At common law the finding of the jury as to the facts was not. subject to he reviewed in an appellate court, but the judge trying the case had the power to grant a new trial, if he believed the evidence did not sustain the finding. If the jury, from prejudice, passion or a misapprehension of the evidence, found a verdict manifestly against its weight, the judge could thus prevent injustice and wrong by submitting the cause to another jury.</p> <p>4. Contract—may be changed by subsequent agreement. The right to contract includes the right to modify, change or abrogate a pre-existing contract.; therefore, any contract not under seal, whether in writing or verbal, may, by a subsequent verbal contract, he annulled or changed, and the last contract, if supported by a consideration, will bind the parties.</p> <p>5. Same—consideration. Where a party, employed under a special verbal contract to furnish materials and erect a building, finding himself unable to perform without great loss, .owing