Millikin v. Taylor, 53 Ill. 509 (1870)

Jan. 1870 · Illinois Supreme Court

53 Ill. 509

James Millikin v. Robert Taylor.

New trials—verdict against the evidence. In this case, the testimony was conflicting, and the court refused to reverse the judgment,-the verdict not being so clearly against the weight of the evidence as to justify its being set aside.

Appeal from the Circuit Court of Macon county; the Hon. Arthur J. Gallagher, Judge, presiding.

This was an action of assumpsit, brought by Robert Taylor against James Millikin, for the recovery of money alleged to have been received by the defendant to and for the use of the plaintiff. It appears that the plaintiff received an assignment of a promissory note, executed by a man named Priest in favor of one Johnson, for the sum of $4410, secured by a mortgage on a lot of cattle, the defendant having a second mortgage for $1200 on the same lot of cattle. By agreement, defendant took possession of the cattle and disposed of them, afterward paying to the plaintiff the sum of $1000, and to recover the balance due the said plaintiff, on said note, this suit was brought. Plaintiff recovered judgment, to reverse which defendant appealed.

Messrs. Crea & Ewing and Mr. A. B. Bunn, for the appellant.

Messrs. Emerson, Smith & Emerson, for the appellee.

Mr. Justice Lawrence

delivered the opinion of the Court:

This record presents solely a question of fact, to-wit, whether appellant had received the money on the sale of the cattle upon which appellee held a lien, or enough of the money to pay the amount going to appellee. On this point the testimony is contradictory, the appellee and Priest swearing that appellant had stated to them he had received the money, and appellant swearing he had received only $2500, for which he had accounted. In this state of the evidence, we can not say the verdict was so clearly against its weight as to justify us in setting it aside.

Judgment affirmed.