1. EVIDENCE-burden of proof. When the plaintiff declares generally for work and labor done, and materials furnished, and the defendant files the general issue with notice that he will insist on the trial that the work was performed under a written contract, the burden of proof is not thrown upon the plaintiff to show an abandonment of the special contract, until the defendant has proved the averment in his notice.

2. NEW TRIAL--finding of jury. When the testimony in respect to a material fact, is contradictory, and can not be reconciled, as the jury have the advantage of judging from the manner, appearance, and interest of the witnesses, this court will not disturb their finding.

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

Messrs J. C. & J. J. KNICKERBOCKER, for the appellants.
Mr. JOHN W. BENNETT, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the
Court:

The errors assigned are:

First. That the court erred in giving the second instruction for appellee.

iff.

Second. That there was a non-joinder of a proper plaint

Third. That the verdict was against the evidence.

The second instruction was: "that the burden of proving that the work and materials were furnished under the written contract, is upon the defendants in this case; and they are required to establish that fact by a preponderance of evidence. If a written contract for the doing of the work be proved, then the burden of proof is on the plaintiff to show that such contract was abandoned before recovery for such work otherwise than under the written contract."

Opinion of the Court.

The action was assumpsit for work and labor done, and materials furnished. The plea of the general issue was filed, and a notice that it would be insisted on the trial, that the work was performed under written contract, set out in the notice.

The pleadings, as assumed by counsel, did not throw upon appellee the burden of proof of abandonment of the contract, until appellants proved the averments in their notice. No principle of law required this. If there had been a formal plea of set-off, appellants would have been bound to prove it. They would then have assumed the attitude of plaintiffs. The plea of non-assumpsit, with notice of special matter, having been filed, an issue was joined; and the parties must then prove the affirmative averments made by them respectively. The plaintiff must prove his cause of action under the common counts; and the defendants must prove the performance of the work under the written contract. Then only would it devolve on the plaintiff to show an abandonment of such contract. Kelly v. Garrett, 1 Gilm. 649; 1 Saund. on Plead 1088; Burgwin v. Babcock, 11 Ill. 28.

The rule contended for by counsel for appellants, would require the plaintiff not only to prove his own case, but then to establish that of his adversary.

The cases cited bear no analogy to the one at bar. In Martin v. Brewster, 49 Ill. 306, the defendant filed a plea in abatement, that the cause of action did not accrue in Cook County. The defendant replied, that it did accrue in Cook County, but offered no proof to sustain the replication. He assumed the burden of proof, and made none.

In the case of Bentley v. Bentley, Executor, 7 Cowen, 701, the declaration was on a note, given by the testator to the plaintiff. The defendant pleaded plene administravit. The plaintiff replied, that defendant had goods and chattels, etc. The court decided that the burden of proof was on the plaintiff.

The substantial part of the plea was, that the defendant had no goods and chattels. In a note to Noel v. Nelson, 2

Opinion of the Court.

Saund. 221, Sergeant Williams says, the words that they have fully administered the goods, etc., seem to be superfluous. The more formal and correct way of pleading appears to be, that they have no goods or chattels, omitting the words, that they had fully administered.

The replication was, therefore, affirmative, and proof of its averments devolved upon the plaintiff.

In the case at bar, the plaintiff below filed no replication to the notice of set-off. He could not have done so, for the reason that it was no plea. By the pleadings, therefore, he assumed no affirmative, so far as the written contract was concerned.

The instruction was substantially correct, and could not mislead.

The other errors assigned depend wholly upon the evidence.

Appellee testified that no person was interested with him in the work performed, and that it was not done in pursuance of the written contract; and that the writing was wholly abandoned and surrendered before the commencement of the work.

His statement is, to some extent, corroborated, but is positively contradicted by the opposite party. To whom shall the most credit be given? How can we harmonize the diverse statements?

The manner, appearance, and interest of the witnesses were observed and closely watched by the jury, and necessarily and properly influenced their conclusion. These are not imaged to us in the record.

There is no reason for reversal, and the judgment is affirmed.

Judgment affirmed.

Syllabus. Opinion of the Court.

NATHANIEL S. PIERCE

V.

JULIA ANN MILLAY, by her next friend, etc.

1. PARENT AND CHILD. In an action of trespass to recover for personal injuries to a child, the alleged trespass being the placing of the child, by the defendant, in a buggy and driving off with her, when the horse took fright and ran away, throwing out the child and causing the injury complained of, the defendant set up the permission of the mother to take the child: Held, the plea, which merely alleged the permission of the mother, without averring any authority or circumstance implying an authority on the part of the mother to give such permission, was defective, as the mother, as such, is entitled to no disposing power over the person of the child, the father being the person entitled by law to the custody of his child.

2. INSTRUCTION. Where the court, in modifying an instruction asked by the defendant, merely employed the language of the defendant used in another of his instructions, it was held, although the instruction as thus given was erroneous, the defendant could not be allowed to complain.

APPEAL from the Circuit Court of La Salle County; the Hon. EDWIN S. LELAND, Judge, presiding.

Messrs. BLANCHARD & SILVER, for the appellant.

Messrs. STIPP, BOWEN & SHEPHERD, and Mr. H. K. BOYLE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This case has been in this court once before-Pierce v. Millay, 44 Ill. 189.

The right of recovery was then recognized, and the judg ment was reversed, on the ground alone that the damages were excessive.

Another trial has been had, resulting in a judgment for the plaintiff for $1,000 dollars damages-the former verdict having been for $4,000.

The evidence upon the last trial does not appear to have been essentially different from what it was on the former one, and we can not say that it does not justify a verdict

Opinion of the Court.

for the plaintiff; and the damages now recovered are reduced so largely in amount from the former recovery that we do not feel warranted in disturbing the present finding as to the amount of damages.

It is objected that a demurrer was sustained to the defendant's third additional plea, which was filed in the cause after it was remanded to the court below. This plea sets up the permission of the mother to take the child.

It is defective in merely alleging such permission of the mother, without more; not averring any authority, or circumstances implying an authority, to give such permission. The father is the person entitled by law to the custody of his child.

A mother, as such, is entitled to no disposing power over the person of the child. 1 Black. Com. 453.

We perceive no error in giving instructions for the plaintiff.

It is urged that the court erred in so modifying instructions asked by the defendant, as to declare the law to be, that an action will lie against the husband alone, for the sole trespass of the wife during coverture. Although the defendant should not have been sued alone for a trespass by his wife, unless committed under his direction, express or implied, yet the court only adopted in its modifications in this respect, the language employed by the defendant himself in his second instruction, and he should not be admitted to complain of it as

erroneous.

Other qualifications, as well as refusal of instructions for the defendant, are assigned as error, which we have carefully considered, and regard the ruling of the court to have been substantially correct. The instructions given on the part of the defendant declared the law of the case as applicable to the defense very fully and fairly, leaving to the defendant no just ground of complaint on that score.

The judgment of the court below must be affirmed. Judgment affirmed.