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61 Ill. App. 279

Wrigley v. Cornelius

Appellate Court of Illinois

Decided December 12, 1895

Appellate Court of Illinois · decided 1895-12-12

<p>1. Credibility op Witnesses—For the Jury.—The question of the credibility of witnesses is one for the jury.</p> <p>3. Waiver—Notice of Resale of Goods.—A person entitled to notice of the resale of goods waives the same by telling the persons of whom such notice is required, in reply to the question “What shall be done .with them ? ” that he does not care.</p> <p>3. Vendor and Vendee—Resale of Goods on Refusal to Accept.— When a vendee refuses to accept goods, and waives notice of the resale of them by the vendor, the vendor is only required, on a suit for the recovery of damages for non-acceptance, to show that he disposed of-such goods in good faith,- with reasonable prudence and discretion.</p>

Relies on Johnson v. People · Johnson v. People · Bowlan v. Lambka

Affirmed · Decided 1895-12-12

Mr. Presiding Justice Gary

¶1delivered the opínion of the Court.

¶2The appellees sued the appellants for not accepting part of the goods which the appellees allege that the appellants contracted to buy from the appellees.

¶3The first head of the appellants’ brief is: “ The improper admission of evidence.” The abstract shows no exception to the admission of any evidence.

¶4Second. “ The refusal of proper instructions on the question of the burden of proof.” Those instructions are:

¶5“ The jury are instructed that the burden of proof in this class of cases is always upon the party holding the affirmative; and any matter asserted by one party and denied by the other can only be proved in law by a preponderance of the evidence, and in this case, if the jury find from the evidence that the plaintiff has proved the alleged contract by only one witness, and that the contract has been denied by one witness of equal credibility and means of knowledge, then, as a matter of law, such contract has not been proved, unless in the minds of the jury there have been facts or circumstances proved corroborating the plaintiff’s witness sufficient to outweigh the testimony on the part of the defendant.

¶62. If you believe from the evidence that the plaintiff has sworn positively that the defendant ordered ten thousand of the pictures in controversy from the plaintiff, and that the defendant has sworn just as positively that he did not order ten thousand of the pictures in controversy from the plaintiff, and if you further find from the consideration of the evidence in the case that the testimony of the defendant is entitled to as much credit as that of the plaintiff, and corroborated to the same extent, then, so far as that point is concerned, you should find for the defendant.” Johnson v. People, 40 Ill. App. 382, 140 Ill. 350, is a complete answer. Credibility of witnesses is for the jury.

¶7The really serious question in the case is under the third : “ The necessity of notice of resale.” We shall not enter upon the task of reconciling, or extracting the true rule from the many cases on that subject.

¶8The evidence is that on the refusal to accept, one of the appellees asked one of the appellants what he (appellee) should do with the rest, and the reply was that he didn’t care what —do what appellees chose. This waived notice, and only required appellees to show that they disposed of the residue in good faith and with reasonable prudence and discretion.

¶9The bill of particulars is not before us, not being in the bill of exceptions. Bowland v. Lambka, 57 Ill. App. 334. The judgment is affirmed.

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