#### Michael J. Ryan, Appellee, v. John E. Harty, Appellant.

Gen. No. 6,256.

(Not to be reported in full.)

Abstract of the Decision.

1. Evidence, § 475 * —what constitutes preponderance. The number of witnesses testifying in a case is not necessarily decisive of the question of preponderance.

2. Evidence, § 475*—what constitutes preponderance. If there are but two witnesses in a case and they testify diametrically opposite to each other concerning matters within their personal knowledge, this does not necessarily result in a lack of preponderance, but the question of preponderance is largely a question of credibility of the witnesses, and is for the jury to determine.

3. Witnesses, § 253*—who proper judge of credibility of. The jury are the proper judges of the credibility of witnesses.

4. Appeal and ebbob, § 1258*—when defendant may not complain of verdict. A defendant cannot complain on appeal that a verdict is for a lesser sum than the amount of the plaintiff’s claim.

Appeal from the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.

Affirmed.

Opinion filed August 10, 1916.

Statement of the zCase.

Action of assumpsit by Michael J. Ryan, plaintiff, against John E. Harty, defendant, to recover the amount of a note for $1,106 alleged to have been retained by defendant. From a judgment for plaintiff for $1,000, defendant appeals.

John W. Fling, Jr., and William W. Wright, for appellant.

James H. Rennick, for appellee.

*

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

Mr. Presiding Justice Niehaus

delivered the opinion of the court.