Laird v. Warren

Citations

• 92 Ill. 204

Syllabus

<p>1. Appeals from Appellate Court — questions of fact. This court is°not authorized to review the rulings of the Appellate Court on controverted questions of fact.</p> <p>2. New trial—newly discovered evidence. The court is not justified in granting a new trial to allow the introduction of newly discovered evidence which is merely cumulative, and by no means conclusive.</p> <p>3. Promissory note—whether payable out of a particular fund. An instrument in writing in which the maker promises unconditionally to pay a sum of money by a day named, followed by a recital that the maker has received a lot of cattle of the payee, upon which the maker agrees to give him a lien until the note is paid in full, with interest after maturity, and providing a forfeit of $100, if the note is not paid within twenty days after sale of the cattle, which is not to be made on credit without the consent of the payee, is not payable out of the proceeds of the sale of the cattle, nor is the forfeiture, but the sum named becomes due on the day named, and the penalty on the happening of the contingency.</p> <p>4. Same—penalty for want of prompt payment. Where a party gives his note for the payment of $1000 on a day specified, and agrees therein to pay a forfeit of $100 if the note is not paid within twenty days after the maker sells his cattle, the $100 will be payable as a penalty upon the happening of the contingency the same as any other debt owed by the maker.</p> <p>5. Evidence—by whom may be introduced. The defendant must sustain his plea of set-off, when interposed, by a preponderance of the evidence before he can recover under it. In doing this the defendant is not limited to the proofs introduced by him, but takes the benefit of evidence in his favor introduced by the plaintiff.</p> <p>6. Practice—instruction how to find. There is no error in instructing the jury that unless they believe from the evidence that the defendant has sustained his plea of set-off by a preponderance of the