Lincoln v. Stowell

Citations

• 62 Ill. 84

Syllabus

<p>1. Pleading and evidence—variance. An allegation in a declaration, of a contract, that if the plaintiff would bring about and effect a sale for defendant of his lumber yard and materials, defendant would permit plaintiff to retain one-third interest in the premises and materials, and, in addition thereto, would give him one-third of one-half for effecting the sale, it seems, is not sustained by proof that defendant offered plaintiff if he would make sale of two-thirds of the concern, he would retain one-third and give plaintiff one-half of that, for selling the other two-thirds, and that plaintiff might account for the rest. The pleading and proof is variant.</p> <p>2. New trial—-finding of jury. To entitle the plaintiff to recover, he must establish his right by a preponderance of testimony. When the testimony of the plaintiff is expressly contradicted by that of the defendant, and defendant is corroborated by two other witnesses, a verdict for the plaintiff is not sustained by the evidence, and it is error to refuse a new trial.</p>