Millikin Nat. Bank v. Shellabarger Grain Co.

Full title: Millikin National Bank of Decatur, Appellant, v. Shellabarger Grain…

Court: Appellate Court of Illinois, Third District

Date published: May 28, 1945

61 N.E.2d 589 (Ill. App. Ct. 1945)

61 N.E.2d 589

Opinion

Gen. No. 9,418.

Opinion filed May 28, 1945. Released for publication June 23, 1945.

1. APPEAL AND ERROR, § 790^_ — effect of failure to set out allegedly erroneous instructions in brief and argument. Where instructions complained of were not set out in brief and argument but were simply referred to by letter and number, appellant was not entitled to have reviewed alleged errors in instructions.

_ See Callaghan's Illinois Digest, same topic and section number.

2. HARMLESS AND PREJUDICIAL ERRORS, § 121^fn_ — when appellant cannot complain of instructions which are not models of perfection. Although instructions given are not models of perfection, appellant cannot complain when such instructions adequately informed jury of issues involved and law applicable thereto.

3. FRAUD AND DECEIT, § 120^fn_ — when verdict for plaintiff is not against manifest weight of evidence. In bank's action against both corporation and individuals, alleging fraud, misrepresentation, and concealment, and asking judgment for balance due on certain of corporation's obligations in hands of bank, held that verdict for bank was not against manifest weight of evidence.

4. TRIAL, § 162^fn_ — when verdict of jury to be sustained. When evidence was complicated and, in many instances, two equally plausible interpretations could be made from facts, held that verdict of jury was required to be sustained.

Appeal by plaintiff from the Circuit Court of Macon county; the Hon. WALTER W. WRIGHT, Judge, presiding. Heard in this court at the May term, 1945. Affirmed in part, reversed in part and remanded with directions. Opinion filed May 28, 1945. Released for publication June 23, 1945.

LEE BOLAND and LEFORGEE, SAMUELS MILLER, all of Decatur, for appellant.

HAL M. STONE, of Bloomington, and EMANUAL ROSENBERG, of Decatur, for appellees.

MR. JUSTICE HAYES delivered the opinion of the court.

On August 24, 1938 the Millikin National Bank of Decatur filed suit against the Shellabarger Grain Products Company and certain individual defendants alleging fraud, misrepresentation and concealment and asking judgment for a balance due on certain obligations of the company held by the bank. A trial before a jury in the circuit court of Macon county resulted in a verdict for defendants which was set aside by the court and a new trial granted. The cause was retried in December 1942 and this time the jury returned a verdict for plaintiff. Defendants filed alternate motions for new trial and judgment notwithstanding the verdict. The court overruled the motion for new trial but entered judgment on the latter motion against plaintiff for costs. The plaintiff bank appealed to this court where this judgment was reversed and the cause remanded to the circuit court of Macon county with direction to vacate and set aside the judgment notwithstanding the verdict, deny the motion therefor and enter judgment for the plaintiff on the verdict of the jury for the amount thereof and costs of suit. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 322 Ill. App. 189. Upon further review the Supreme Court reversed our judgment and remanded the cause to this court with directions to pass upon and determine the questions raised by appellant's motion for new trial. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill. 196.

The grain company in its answer in the original proceedings for review in this court argued that the trial court should have granted its motion for new trial because of errors the court committed in giving and refusing instructions. It should be noted at the outset, however, that the instructions complained of are not set out in the brief and argument but are simply referred to by letter and number. Because of this, the grain company was not entitled to have the alleged errors reviewed. Jones v. Keilbach, 309 Ill. App. 233; Sterling-Midland Coal Co. v. Ready Callaghan Coal Co., 236 Ill. App. 403; General Platers Supply Co. v. Charles F. L'Hommedieu Sons Co., 228 Ill. App. 201. We have nevertheless examined the instructions in the light of the argument of counsel but find that no reversible error was committed by the trial court. True, the ones given are not models of perfection. We believe, however, that they adequately informed the jury of the issues involved and the law applicable thereto.

In its petition for rehearing in this court, the grain company, in addition to complaining of the rulings of the court on instructions, contended that the verdict was against the manifest weight of the evidence. At that time, we carefully reviewed the evidence and it was our opinion that this contention was not sound. After further review of the evidence which is summarized in our former opinion, Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 325 Ill. App. 189 we still adhere to that determination. The evidence is complicated and in many instances two equally plausible interpretations can be made from the facts. It is our opinion that the verdict of the jury must be sustained.

The order of the circuit court of Macon county denying a motion for new trial is therefore affirmed. The judgment of that court notwithstanding the verdict is reversed and the cause remanded with directions to vacate and set aside the judgment notwithstanding the verdict, deny the motion therefor and enter judgment for plaintiff on the verdict for the amount thereof and costs of suit.

Affirmed in part, reversed in part and remanded with directions.