{
  "id": 5154927,
  "name": "Edward Day v. George Gregory",
  "name_abbreviation": "Day v. Gregory",
  "decision_date": "1895-06-03",
  "docket_number": "",
  "first_page": "34",
  "last_page": "39",
  "citations": [
    {
      "type": "official",
      "cite": "60 Ill. App. 34"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 533,
    "char_count": 10141,
    "ocr_confidence": 0.48,
    "sha256": "c308c5bd23744a84eaff6140ac0ae058d093d2fcd41adb8c487034f7c130211d",
    "simhash": "1:08ac512f7db5f0d6",
    "word_count": 1711
  },
  "last_updated": "2023-07-14T15:22:36.351146+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Edward Day v. George Gregory."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Pleasants\ndelivebed the opinion of the Ooubt.\nThe parties respectively occupied houses a quarter of a mile apart on the same farm, which they rented and worked together, halving the expenses and proceeds. Appellant is a nephew of appellee. They worked together on this understanding two or three years\u2014when they began or when they quit ivas not shown. In using, furnishing, paying and receiving, they became indebted to each other on divers items. Appellant claimed to have kept an account, but appellee never did and appellant knew it. After several talks about a settlement, appellee and his wife, on November 17, 1892, went to appellant\u2019s house to look with him over their matters and find out how they stood. Appellant\u2019s wife, sister and brother were present. He claimed that they then and there settled and agreed upon a balance against appellee of $196.94, which he promised to pay; but as it was not paid, this action was brought in assumpsit on the common counts for that amount and another item, making together $208.46. The general issue was filed, and the jury having found for the defendant and their finding being sustained over a motion to set it aside, judgment was rendered against the plaintiff for costs, and he brings the record here for review.\nAppellant claims a clear and large preponderance of evidence in his favor, but admits there was some conflict. As presented in the abstract it appears to us to be subject to' some criticism in itself, which may have materially aided the contradiction by that of the defendant. The book introduced as showing the statement of the account on which the balance due was said to have been agreed on, was admitted to have been made up in good part from other memoranda after different intervals of time. It contained about eighty debit items and only about twenty of credits, which was perhaps a greater disparity in number than would naturally be expected under the circumstances, and between parties equally interested in the business out of which in the most part they grew, and the balance was as proper- \u25a0 tionately large on the side of the debits. The one who made it understood that the other was not keeping any, to check it. The order, or disorder, in time, of these entries is illustrated by the first six which are as follows:\n\u201c 1891.\nFebruary 17, 2 hogs at 3.30, 22 pounds apiece......$-14.72\nMarch 19, potatoes................. 11.75\nDecember 27, loaned.............................50\nJanuary 27, difference on H. Warner\u2019s 2 hogs...... 2.65\nApril 26, due beefsteak...........................25\nApril 7, \u25a0\u00a7\u25a0 paid Arne Mavis.......................30\u201d\n\u2022 Appellant offered explanations, particular and general, of these irregularities running throughout the statement, which are claimed by counsel to have been satisfactory, but they would be apt to shake the confidence of a jury.\nAgain, appellant,, his brother and his sister, alike testified that a balance was agreed on, amounting to nearly $200, and that appellee promised to pay it. But appellant stated that the promise was to pay it \u201c when he sold some horses;\u201d his brother, \u201c when he sold his steers;\u201d and his sister, \u201c when he could. He mentioned no particular amount.\u201d Such was the evidence upon which appellant mainly relied.\nAppellee fully admitted that they met to settle and that the parties named were present; but testified that two or more books or statements were produced (and appellant\u2019s sister testified that there were two); that his wife looked over them (while appellant was absent for half an hour) and found that he had been charged with some items several times, though they don\u2019t appear on the book introduced, and that he told appellant he wouldn\u2019t settle by those books or his figuring. He strongly asserted that he did not settle or agree on any balance or promise to pay anything; that he had paid certain items charged, made other payments to and for appellant and let him have property not credited, and owed him nothing, but that appellant owed him. His testimony also, as it appears in the abstract, is subject to criticism. He couldn\u2019t give amounts or dates or places or circumstances of a number of payments claimed, which, however, is not very surprising, as he kept no record, and was contradicted on some points not here mentioned, as was appellant.\nWithout going further into particulars it was evidently a case in which the unanimous judgment of twelve impartial men who saw and heard all the witnesses, as to their comparative credibility, the preponderance of the evidence and the merits of the claims on each side, should be accepted as final, unless there was material error in some ruling of the court.\nIt is argued that one item of evidence was improperly admitted and was prejudicial to appellant, viz., that he said to three or four of the witnesses, on different occasions, that it would be easy to beat appellee in a law suit because he kept no account; which must have been understood by the jury as referring* to this suit, then begun or in prospect, because no other claim or account against him was mentioned, though his own was not otherwise indicated, nor did he otherwise intimate an intention to take advantage of the fact stated.\nHis claim was founded almost wholly on an alleged settlement by the account he made out. It was therefore competent to impeach the reliability of that account. The testimony complained of, in connection with other circumstances in proof, may have tended to do so, and the abstract fails to show that any objection to its admission was made when it was offered. If it had no such tendency, it could do no harm. But we are inclined to think that his knowledge on that subject, as admitted by him, was a fact which the jury might properly know and weigh, as tending to show opportunity to take advantage, and defendant\u2019s confidence in his integrity as a reason for his own neglect to keep an account.\nThe only other point urged against the judgment is that in the instructions given at the instance of defendant, the court assumed the existence of a partnership between the parties, and upon that assumption told them the law was that neither partner could maintain an action at law against the other for any indebtedness arising out of that relation, until an accounting was had between them, of all such matters, and a balance agreed on. Three instructions to that effect, in abstract form, were given. The first of these commences thus: \u201c That an action at law will not lie by one partner against another,\u201d etc. Another, \u201c That one partner can not maintain an action at law against the other in relation to their partnership business, until,\u201d etc. A third was similar, and a fourth was that, \u201c Though the jury may believe from the evidence that an accounting was had between plaintiff and defendant of partnership matters and a balance was determined, yet if they further believe from the evidence that plaintiff, by fraud or concealment, prevented a fair settlement of such partnership matters, or fraudulently and without defendant\u2019s knowledge, charged defendant with improper sums, then the plaintiff can not maintain an action as to that part of his account arising from partnership matters.\u201d\nThough these instructions state the law correctly, they should not have been given in that form if there had been any dispute, upon the 'evidence, as to the existence of the partnership relation, but the question should have been left to the jury to determine it from such evidence. We can not doubt that the court understood the fact of partnership as conceded. We think such an understanding was fully warranted. Both of the parties and all the witnesses on each side agreed in designating their relation as that of a partnership, and while they may not have known what is technically required to constitute it, we find nothing in the facts, as stated, to show it was not of that character. And the first instruction for plaintiff, as we think, also substantially conceded it. It declared upon the hypothesis of a settlement, balance found and promise to pay, that the plaintiff was entitled to recover the amount with interest, \u201c and it makes no difference whether the items embraced in such settlement were partnership or individual matters, or both.\u201d\nMoreover, as already observed, the book introduced was not evidence in itself, but only as the statement by which the settlement was alleged to have been made; hence, had there been no partnership, the appellant would not have been entitled to recover, unless a settlement by it had been made and a balance in his favor found, except for such items as were independently proved\u2014which were few, if any, and as we apprehend, without stopping to ascertain, those so claimed do not exceed the credits given, of which it was evidence as against him. The question of partnership was, therefore, not very material.\nWe see no sufficient reason for its reversal, and the judgment will be affirmed.",
        "type": "majority",
        "author": "Mr. Justice Pleasants"
      }
    ],
    "attorneys": [
      "Patton, Hamilton & Patton, attorneys for appellant.",
      "Conklins & Grout, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Edward Day v. George Gregory.\n1. Witnesses\u2014Credibility of.\u2014The judgment of a jury who see and hear all the witnesses, as to their comparative credibility, the preponderance of the evidence and the merits of the claims on each side, should be accepted as final, unless there is material error in the ruling of the court.\n2. Impeachment\u2014Of Accounts.\u2014In an action founded upon an alleged settlement of an account, it is competent to impeach the account, and any evidence, as for instance the fact that the plaintiff said it would be easy to beat the defendant because he kept no account, which in connection with other circumstances in proof may tend to do so, is competent.\n3. Instructions\u2014Abstract Propositions of Law.\u2014It is error to give as an instruction an abstract proposition of law, but when it is based upon an immaterial question, it is not reversible error.\nAssumpsit, on an account stated. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1894.\nAffirmed.\nOpinion filed June 3, 1895.\nPatton, Hamilton & Patton, attorneys for appellant.\nConklins & Grout, attorneys for appellee."
  },
  "file_name": "0034-01",
  "first_page_order": 32,
  "last_page_order": 37
}