Loescher v. Deisterberg (26 Ill. App. 520, 1888)

Bailey, J.

This was a suit by attachment brought by Julius and Herman Loescher against John Deisterberg, to recover a balance of §524 due on an account. The attachment affidavit charged that the defendant had, within two years then last past, fraudulently conveyed or assigned his effects or a part thereof, and fraudulently concealed or disposed of his property, so as to hinder and delay his creditors, and was about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder or delay his creditors. The defendant filed pleas of the general issue and set-off, and also a plea traversing the attachment affidavit, and at the trial the jury found a verdict upon the attachment issue in favor of the defendant, and upon the other issues in favor of the plaintiffs, and assessed their damages at §274. Hpon this verdict the court, after overruling the plaintiffs’ motion for a new trial, gave judgment in favor of the plaintiffs for §274 and costs, and dissolved the attachment, and the plaintiffs bring the record to this court by appeal.

It is insisted that the verdict, so far as it relates to the attachment issue, is contrary to the preponderance of the evidence. There was some evidence given of certain admissions and acts of the defendant which, if unexplained, would have some tendency to show an intention and also an attempt on his part to secrete certain portions of his property from his creditors, but said evidence is, at best, but weak and inconclusive, and as it is directly disputed by the testimony of the defendant himself, we are not able to say that the jury were not justified in finding that issue for the defendant. The utmost that can be said is that the evidence was conflicting, and the jury having seen and heard the witnesses, were best able to judge as to their credibility and determine the facts in respect to which their testimony differed. As they have resolved the conflict in favor of the defendant we see no reason for disturbing their finding.

The plaintiffs’ account upon which the suit was brought was for goods and merchandise sold and delivered by them to the defendant, and as to the balance due upon said account there is little or no controversy. This balance was §524. The principal contest arises upon the defendant’s set-off. The set-off claimed is for damages arising from an alleged" breach by the plaintiffs of a contract by which they agreed to sell and deliver to the defendant, within a given time, certain commodities, at a stipulated price. The defendant was a manufacturer of leather, and was making use of a,.process which he had learned in Germany, by which skins taken from the rumps of horses and known to the trade as