Bonnell v. Wilder

Citations

• 67 Ill. 327

Syllabus

<p>1. Burden of proof. Where a defendant, when sued upon a note, pleads payment and set-off, upon which issue is taken, the affirmative of the issues is upon him, and he is bound to sustain them by a preponderance of the evidence.</p> <p>2. In such a case, where the only witnesses are the plaintiff and the defendant, and neither is impeached, and the plaintiff’s evidence contradicts that of the defendant, the jury should look to the circumstances usually attending such a transaction as is testified to, which is a part of their general knowledge, and they ought to consider them and be governed by the reasonableness of the testimony of each when so viewed.</p> <p>3. It is a well established rule in all courts, that a party who makes an affirmative allegation must maintain it by proof, and his proof must be superior to that offered by his adversary, or the negative will be presumed.</p> <p>4. Payment—application of. A debtor has the right, at the time of making a payment, to direct its application where the creditor holds one or more claims; but when not so directed, the creditor has the right to apply money paid to him, generally, to whatever debt he sees proper, unless there are circumstances rendering the exercise of such discretion unreasonable, or enabling him to do injustice to his debtor.</p> <p>5. New trial—verdict against evidence. In actions arising out of contract, this court will be less reluctant to set aside a verdict where it is apparent that the jury have mistaken the evidence, or found against its clear preponderance.</p>