Opinion of the Court.

69 401

MAURICE CLIFFORD

v.

CHRISTIAN LUHRING et al.

1. NEW TRIAL—in respect to finding from the evidence. Where the evidence is conflicting as to the nature and extent of a contract, the verdict of the jury in settling the facts of the case will not be disturbed.

2. STATUTE OF FRAUDS-promise to pay the debt of another. Where the leading object of the undertaking is, to promote some object of the party's own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another.

3. Thus, where the defendant had employed a party to build a house, and, on his failure, the plaintiff, who was a sub-contractor, made known the fact to the defendant, and informed him that he would be obliged to quit work, and the defendant thereupon told the plaintiff to go on with his part of the work, and he would pay him, it was held, that the defendant's undertaking was not collateral, but an original one, and was not within the Statute of Frauds, as assuming to answer for the contractor, his main object being to subserve a purpose of his own.

APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.

Messrs. HUNTER & PAGE, for the appellant.

Mr. JOHN H. BURNS, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Superior Court of Cook county, to recover for services as plasterers on a house of the defendant in the city of Chicago. The theory of the plaintiff's case is, a promise on the part of defendant to pay them for their work.

It appears the contract for the whole work on the building was let by defendant to one Gruis, of whom plaintiffs were sub-contractors, and on his failing to perform his contract 26-69TH ILL.

Opinion of the Court.

with them, they testify they made known the fact to defendant, and informed him they would be obliged to quit the work, when he told them to go on, and he would pay them.

There is some conflict in the testimony as to the extent and nature of this promise, which the jury have settled in a manner which we are not justified in unsettling. Where the evidence is conflicting, we have often said we will not disturb the verdict.

We do not think the Statute of Frauds has any application in this case, nor is it like the case of Hite v. Wells, 17 Ill. 88. In that case, the plaintiff counted upon the liability of Lyle, and not upon an original promise from Hite to Wells. The court said the plaintiff should declare upon the new contract.

In this case the undertaking is not collateral, but is declared on as the original undertaking of defendant himself. The defendant did not assume, as we understand the testimony, to answer for Gruis, but his main purpose and object were, to subserve a purpose of his own. 2 Pars. on Con. 305.

As was said in Nelson v. Boynton, 3 Metc. (Mass.) 396, where the leading object of the undertaker is to promote some interest of his own, the promise is not within the statute, although its effect is to release or suspend the debt of another. Here, the object and purpose of defendant were, to have the plastering speedily finished, that he might rent the building, and thus derive income from it. This was the motive.

The judgment is affirmed.

Judgment affirmed.

Syllabus.

ALBRO E. BISHOP

V.

CHRISTIAN BUSSE et al.

1. NEW TRIAL-on finding of the facts. This court will be cautious in the exercise of the power conferred by statute to reverse a judgment on the ground that the finding of the jury is not supported by the testimony, for the reason that it is the province of the jury to pass upon and deter mine the weight of evidence and to find the facts, and because the jury and the court below have better opportunity of judging of the credibility of each witness' testimony, and the weight to be attached to it, by seeing the witnesses on the stand, and their appearance, and manner of testifying.

2. SAME-finding not tested by the number of witnesses, alone, on each side. The question whether a verdict should be sustained or set aside as to the finding of the facts, does not depend upon the number of witnesses testifying on each side upon the disputed points. The number of witnesses may be on one side while the decided weight of evidence may be on the other.

3. SAME-rule at common law. At common law the finding of the jury as to the facts was not subject to be reviewed in an appellate court, but the judge trying the case had the power to grant a new trial, if he believed the evidence did not sustain the finding. If the jury, from prejudice, passion or a misapprehension of the evidence, found a verdict manifestly against its weight, the judge could thus prevent injustice and wrong by submitting the cause to another jury.

4. CONTRACT-may be changed by subsequent agreement. The right to contract includes the right to modify, change or abrogate a pre-existing contract; therefore, any contract not under seal, whether in writing or verbal, may, by a subsequent verbal contract, be annulled or changed, and the last contract, if supported by a consideration, will bind the parties.

5. SAME-consideration. Where a party, employed under a special verbal contract to furnish materials and erect a building, finding himself unable to perform without great loss, owing to a rise in prices, informed his employer that he would not comply with the contract, and the employer directed him to go on and finish the work and he would pay him what was right for it: Held, that the new agreement was based upon a sufficient consideration, and valid. The mutual promises of the parties were sufficient to support the new agreement.

Opinion of the Court.

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

Mr. B. W. ELLIS, and Mr. ROBERT HERVEY, for the appellant.

Mr. JOHN VAN ARMAN, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellees brought assumpsit to recover a balance claimed to be due from appellant for labor performed and materials furnished by appellees in the construction of a house for appellant. The declaration contains the common counts, to which the general issue and a plea of payment were filed. The cause was tried by the court, and a jury, who found the issues for plaintiffs, and assessed their damages at $8069.30, and after overruling a motion for a new trial, the court rendered judgment on the verdict, and plaintiff brings the case here on appeal.

A few days after the fire of the 9th of October, 1871, the parties met and entered into a verbal contract, by which appellees agreed to build a four-story brick house, about 80 feet front by 100 feet back. Appellees were to be paid $15 per thousand for the brick in the wall, $20 per cord for rubble stone laid, and 45 cents per foot for dimension stone. At the conclusion of the agreement the prices were written down, as a memorandum. The building was to be plain and substantial. As to these facts there appears to be little, if any, difference, and appellant claims that the work was done and the house completed under this contract. On the other hand, appellees claim that this contract was abrogated, and a new agreement entered into, under which the house was built.

On the trial, both of the appellees testified, that within a week after they had commenced work they severally saw appellant, at different times, and that they each informed him that they could not and would not go on under the contract, and must abandon it, when appellant told them to go

Opinion of the Court.

on and finish the job, and he would pay them what was right for it. This, appellant denies, and he called two other witnesses, who testified that whilst they were engaged in building the house and one of them says as late as near Christmas— they heard one or the other of appellees admit that they were doing the work at the prices specified in the first agreement. The question was propounded directly to the jury, and in response to it they specifically found that the new contract had been made, as claimed by appellees, and it is urged that this finding is not sustained by the evidence.

The jury, under the law, have the exclusive right to pass upon and determine the weight of evidence, and to find the facts. At common law that finding was not subject to be reviewed in an appellate court. The judge trying the case was, however, entrusted with the power to grant a new trial if he believed that the evidence did not sustain the finding; that if the jury, from prejudice, passion, or a misapprehension of the evidence, found a verdict manifestly against its weight, the judge could thus prevent injustice and wrong by submitting the case to another jury. And this was supposed to afford the parties all needed protection. The judge trying the case had the same opportunity to see and hear the witnesses, and to estimate the character of their testimony, as the jury, hence there was a fitness in his being required to pass upon it on a motion for a new trial. But the appellate court neither sees nor hears the witnesses testify, and only sees the evidence on paper, where it all appears alike. The evidence of a witness whom no one, seeing and hearing testify on the stand, would believe, when his evidence is reduced to writing may appear as consistent and truthful as that of a witness of the most undoubted truth and integrity. From these considerations it is apparent that we should be cautious in the exercise of the power, conferred upon us by the statute, to reverse because the finding is not supported by the testimony.

In all such cases, the presumption is, that the jury have done their duty and found correctly; that the judge trying