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making accurate proof of the damages that would flow from a breach of the contract, had adjusted in advance what would be compensatory damages to either party injured. As was said in Peine v. Weber, "unless there is good cause for it, a court can not declare a stipulated sum, which the parties themselves have said shall be the amount of damages, to be a penalty merely." The facts in this case afford no sufficient reason for so declaring. The contract was fairly made and understandingly entered into., Considering the language employed, the nature of the contract, what the parties had contracted to do, and all the attendant circumstances, we can not avoid the conclusion it was the intention the sum named should be the measure of damages in case of the failure of either party to perform the agreement. As sustaining this construction of the contract, numerous cases, entitled to consideration as authority, might be cited. It will only be necessary to refer to a few most analogous, among others the following: Slasson v. Beale, 7 Johns. 72; Knappe v. Maltby, 13 Wend. 587; Tingley v. Cutler, 7 Conn. 291; Streeple v. Williams, 48 Penn. St. 450; Mead v. Wheeler, 13 N. H. 351.

A majority of the court are of opinion the judgment should be reversed and the cause remanded, with directions to enter judgment in favor of the plaintiff for the sum named in the agreement, as damages.

Judgment reversed.

ALEXANDER EDGMON

บ.

MATTHEW ASHELBY.

1. NEW TRIAL-on finding as to facts. Where there is considerable contradictory and conflicting testimony upon the disputed questions of fact in a case, the parties themselves being the principal witnesses, and the verdict is not clearly against the preponderance of the evidence, and the 11-76TH ILL.

Opinion of the Court.

jury have been properly instructed, this court seldom interferes, unless it appears that injustice has been done.

2. SAME-newly discovered evidence. Where the newly discovered evidence would not be conclusive if admitted, and the case was pending two years before trial, affording ample opportunity to obtain testimony, a new trial will not be granted on the ground of the discovery of such new testimony.

3. INTEREST-due bill. A due bill reading, "Due A; on settlement, $96, April 16, 1869," and signed by the maker, bears six per cent interest from date.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was an action of assumpsit, brought by the appellee against the appellant.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellant.

Messrs. KETCHAM & TAYLOR, and Mr. E. P. KIRBY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was assumpsit, in the Morgan circuit court, counting on a due bill and on an account stated, a bill of particulars accompanying the declaration, brought to the May term, 1872, by Matthew Ashelby, against Alexander Edgmon. The cause was continued from term to term until the November term, 1873, at which term the defendant pleaded non-assumpsit, and set-off, accompanying the same with a bill of particulars. The cause was then continued to May term, 1874, when a trial was had by a jury, and a verdict rendered for the plaintiff for three hundred and five dollars and eighty cents. A motion for a new trial was entered by the defendant, which, on a remittitur being entered for fifty-eight dollars and fifty cents, was denied by the court, and judgment rendered for two hundred and forty-eight dollars and fifty cents. To reverse this judgment the defendant appeals, and assigns as error the refusal

Opinion of the Court.

of the court to grant a new trial, insisting that the verdict is against the preponderance of the testimony, and instructions for plaintiff wrong, and refusing instructions asked by defendant.

We have fully considered all the points made on this appeal, and are satisfied none of them have weight.

The due bill was in these words, to which no objection was made: "Due Ashelby, on settlement, $96, April 16, 1869.” This note, under the statute, bore interest from date. The plaintiff's account, attached, evidenced various items, and on trial a question was asked in regard to the sale of certain hogs by plaintiff to defendant, which was not specified in the bill of particulars, and on objection made by defendant to any testimony on that point, the court, on motion of plaintiff, permitted him to amend his bill of particulars, which was done, defendant not objecting, by adding the item of a sale of twelve hogs at $180; cash, $30; 5 cords wood, $25; interest, $100.

Defendant's bill of particulars, under his plea of set-off, was composed entirely-except an item of four and a half cords wood at $4, and interest four years at 6 per cent-of brick and tile, sold and delivered by defendant to plaintiff. The chief controversy was about the amount of brick and the delivery of the hogs, defendant insisting they were delivered prior to the date of the due bill, in 1866 or 1867, and settled for on the execution of the due bill. Plaintiff contended they were sold and delivered afterward.

Much testimony was heard on the several points in dispute, the parties being their own principal witnesses. It was a case peculiarly fitted for a jury of the neighborhood to decide, who are presumed to know the parties and the witnesses, and something of the nature of the transactions spoken of, which so often occur in the ordinary course of life. In such case, where the verdict is not clearly against the preponderance of the evidence, and the jury have been properly instructed, this court seldom interferes, unless it shall appear that injustice has been done.

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The instructions in this case were more in number on both sides than its exigencies required. There may be some slight inaccuracies in those given for each party, but not of a character to mislead the jury. The jury were required to allow interest on the due bill at six per cent, and if interest was allowed on the account, it may have been included in the remittitur.

The jury did right in their finding on the evidence before them. The newly discovered evidence by McMillen would not be conclusive if admitted. The cause was pending two years before it was brought to trial, affording defendant ample opportunity to obtain testimony, especially that of McMillen, as he lived near the county seat, and on diligent inquiry he could have traced the hogs to the farm of McMillen and found out from him all he knew about the matter.

Upon a review of the whole case, believing justice has been done, the judgment must be affirmed.

Judgment affirmed.

JACKSON GRIMSHAW

V.

MELGAR C. PAUL.

1. ADMISSIONS-of deputy revenue collector not admissible to bind his principal. In a suit by a deputy United States collector against the principal collector, for compensation for services in collecting and remitting taxes on distilled spirits, in which the defendant testified that the deputy was to receive no pay, but was acting for the accommodation of his son, who was storekeeper under the revenue laws, and denied any promise to pay, it was held, that a letter written by a regular deputy of the defendant, who performed duty at the chief office, to the plaintiff, acknowledging the receipt of the taxes, and promising to send him a draft in a few days for his pay, in the absence of proof that his principal directed or even knew of the writing of the same, was not admissible as evidence against the defendant, such promise not being part of the res gestæ, it having no relation to the subject of his acts.

Opinion of the Court.

2. SAME of real parties in interest. The admissions of persons not parties to the record, but who are the real parties in interest, are admissible in evidence in favor of the adverse party, such as the admissions of the cestui que trust of a bond, those of the persons interested in a policy of insurance in another's name for their benefit, those of the ship owners in an action by the master for freight, those of the indemnifying creditor in an action against the sheriff, and those of the deputy sheriff in an action against the high sheriff for the misconduct of the deputy.

APPEAL from the Circuit Court of Henderson county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action of assumpsit, by Melgar C. Paul against Jackson Grimshaw, to recover for services as the defendant's deputy in collecting and forwarding certain taxes. The plaintiff in the court below recovered judgment for $112.50, from which the defendant appealed. The principal and material facts appear in the opinion.

Mr. JACKSON GRIMSHAW, pro se.

Messrs. MANIER, PETERSON & MILLER, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

Appellant, being United States Revenue Collector for the fourth district of Illinois, November 9, 1868, made an appointment, in writing, of appellee as deputy collector, for such duties as might be assigned, but especially as collector of the tax on distilled spirits at Sagetown, Illinois-such appointment being subject to revocation. Appellee was not required by appellant, and gave no bond as such deputy. Appellee, acting under such appointment, collected for taxes on distilled spirits at Sagetown the sum of $90,000, for which return was made to appellant.

This suit was brought by appellee to recover compensation for his services in making said collection. Appellant's theory of the case was, that the appointment was made merely as a

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