Dodge v. Bruce, 208 Ill. App. 570 (1917)

Oct. 16, 1917 · Illinois Appellate Court · Gen. No. 6,461

208 Ill. App. 570

Josephine B. Dodge, Appellee, v. Reuben Bruce, Appellant.

Gen. No. 6,461.

(Not to be reported in full.)

Abstract of the Decision.

1. Instructions, § 63 ^* —when instruction erroneous as assuming facts. An instruction assuming that there was a contract between plaintiff and defendant for the sale by plaintiff of defendant’s property and that plaintiff brought about the sale in controversy, which was a sharply disputed question in the case, held erroneous, in an action to recover a commission on the sale.

Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917.

Reversed and remanded.

Opinion filed October 16, 1917.

Statement of the Case.

Action by Josephine B. Dodge, plaintiff, against Reuben Bruce, defendant, to recover under a contract for a commission on the exchange of certain property. From a judgment for plaintiff for $550, defendant appeals.

Dailey & Miller, Charles C. Le Forgee, George W. Black and Thomas W. Samuels, for appellant.

Burton & Hamilton, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.

2. Instructions, § 12*—necessity of definiteness. An instruction which was very indefinite, uncertain and might mislead the jury should not be given.

3. Instructions, § 88*—when instruction on determination of preponderance of evidence is erroneous. An instruction upon the determination of the preponderance of the evidence, undertaking to enumerate the elements to be considered and omitting the element of the number of the witnesses, and also the element as to the candor and fairness or lack- thereof of the witnesses, held erroneous, notwithstanding the witnesses were equal in number, as the number differed on some points.