¶1It is claimed by defendant in error that no recovery can be had by the plaintiff unless he establishes an absolute contract as claimed to exist by him, even though it should appear that the defendant was liable upon his owp theory of the case. In this we can not concur.
¶2One of the objects of the statute in dispensing with written pleadings before justices of the peace, is to enable the parties to obtain a trial upon the merits of the case; and in cases thus commenced and prosecuted, all the evidence introduced bearing upon the real transaction claimed to exist between the parties should be considered, and if it shows a right of recovery, the plaintiff should not be defeated upon the mere technicality that the evidence of the defendant rather than that of the plaintiff establishes the true contract and its breach.
¶3The cause of action is the failure by defendant to deliver his clover seed as agreed, and the mere fact that the plaintiff claims the contract was an absolute one would not deprive him of his action, if the whole evidence shows a right of recovery. Besides, where no written pleadings are required, there can be no valid objection in permitting a plaintiff to adopt the view of the defendant as to the terms of the contract, and to establish a liability upon the defendant’s theory of the case.
¶4Tire eighth instruction given for the defendant is clearly erroneous, and scarcely defended by counsel. It is as follows:
¶5“The law requires the plaintiff to make clear and satisfactory proof of the contract, as claimed by him; therefore, if you believe the evidence in this case is such as to leave the real terms of the contract between the parties in doubt, the plaintiff can not recover.”
¶6The degree of proof required by this instruction in order to entitle the plaintiff to recover is greater than required by law. Under this instruction, if the jury entertain any doubt upon the terms of the contract, they were obliged to find for the defendant. If the preponderance of the evidence is in •favor of the plaintiff’s version of the contract, the jury should so find, although they may have some doubt concerning it.
¶7Instructions of this character have been frequently condemned by the courts of this State. Ruff v. Jarrett, 94 Ill. 475; Protection Life Ins. Co. v. Dill, 91 Ill. 174.
¶8The eleventh instruction for the defendant was calculated to mislead the jury, as it conveys to them the idea that certain statements of the defendant were made in casual conversation with the witnesses.
¶9The jury should be left free to find from the evidence the character of such conversations, and the weight to be given to any statement proved to have been made by the defendant. Cutler v. Callison, 72 Ill. 113; Straubher v. Mohler, 80 Ill. 21.
¶10Without expressing any opinion upon the weight of the evidence, we reverse the judgment of the county court, and remand the cause for the errors indicated.
¶11Judgment reversed.