De Clerq v. Mungin

Citations

• 46 Ill. 112

Syllabus

<p>1. New trial—verdict—where the evidence is conflicting. In eases where the testimony is conflicting, the verdict of a jury will not be disturbed, unless it is so manifestly against the weight of evidence as to compel the inference that they were influenced by passion, prejudice or partiality, or did not comprehend the case.</p> <p>2. Petit jury—their province. In trials by jury, the weight of testimony is to be decided by them, according as it preponderates.</p> <p>3. Assumpsit—waiver of tort. The rule is well settled, that a party whose property has been taken from him tortiously, or unlawfully detained from him, whereby an action of trespass or trover has accrued, may, if the wrong-doer sell the property and receive the money, waive the tort, affirm the sale and sue in assumpsit for the price actually received.</p> <p>4. Same—concerning proof of price received—how made and determined. In an action of assumpsit- to recover the proceeds of the sale of property tortiously taken from the plaintiff, the fact, whether or not the defendant received the money, need not be proved beyond all doubt; it is sufficient, if the testimony creates a reasonable presumption that the defendant did receive the proceeds, and like all other facts, must be determined on the weight of evidence.</p> <p>5. Instructions—when complained of—the record must contain all the instructions given on both sides. When a party assigns for error certain instructions given on behalf of the appellee, and the record fails to disclose those given for the appellant, such assignment of error will not be considered, as this court cannot determine the true situation of the case as presented on the instructions given.</p> <p>6. New trial—will not be awarded, when it appears substantial justice, has been done. When it appears from the whole record that substantial justice has been done, this court will not award a new trial.</p>