Koester v. Esslinger, 44 Ill. 476 (1867)

June 1867 · Illinois Supreme Court

44 Ill. 476

Henry Koester v. Henry Esslinger.

New trial—verdict against the evidence. A sued B for work and labor performed for Mm. Both parties were sworn, and the defendant testified that he had paid plaintiff in full, and was corroborated in this by other witnesses, who worked for defendant, in the same shop with plaintiff, and who testified that defendant paid his workmen every week, and never delayed longer than two weeks, and that they had seen plaintiff paid nearly every week. Held, that a verdict of the jury in favor of the plaintiff was unwarranted.

Appeal from the Circuit Court of St. Clair county; the Hon. J. Gillespie, Judge, presiding.

This was an action of assumpsit, originally brought by the appellee against the appellant, in the City Court of East St. Louis, where a trial was had, and judgment rendered for §71 and costs of suit. Appellant appealed from this judgment to the Circuit Court of St. Clair county, and judgment was there rendered in favor of appellee for §300; whereupon, the defendant below brings the cause to this court by appeal.

Hr. Wm. H. Underwood, for the appellant.

Mr. J. B. Unberwoob and Mr. S. P. Davis, for the appellee.

Hr. Justice Lawrence

delivered the opinion of the Court:

It was proved in this case that the plaintiff worked for the defendant, in his wagon shop, from September, 1864, to April, 1866, with the exception of about three months. The only controversy was, whether he had been paid. The parties were both sworn. The plaintiff testified he had been paid in all only §235. The defendant testified he had paid him in full. The jury gave the plaintiff a verdict for §300, which was" far too small if they believed the testimony of the plaintiff. But the testimony of the defendant is strongly corroborated by that of other witnesses. Other workmen in the same shop swore, that defendant paid his men generally every week, and never delayed longer than two weeks, and that they had seen the plaintiff paid nearly every week. These statements, considered in connection with the great improbability that the plaintiff would continue at work until, according to his own statement, his wages unpaid amounted to nearly §1,000, while the other workmen were paid in full every week or fortnight, compel us to regard the verdict as clearly against the evidence. We think there should be another trial.

Judgment reversed.