Opinion of the Court.

according to his testimony, what is objected to was called out by Dent, when he inquired why appellee had not sooner presented his claim. Appellee only testified to what he said in reply. It is a general rule relating to conversations, that when one party introduces a part, the other may call for and have the entire conversation, so far as it relates to the subject matter in dispute. We fail to perceive any error in admitting this evidence.

It appears that Bangs, for appellee, testified that he was a good, active, prompt business man, and the court refused to permit appellants to cross-examine him on that question. It would seem that this evidence was material, as tending to enhance the value of appellee's services, rendered for deceased, and in that view appellants should have been allowed to crossexamine on that question. Where the evidence is slight, or nearly balanced, such errors may have an important bearing on the finding of the jury. The parties should have all of their rights strictly guarded in the admission of evidence and the instructions given by the court.

Exceptions are taken to appellee's fifth instruction. It is

this:

"No adjustment of accounts between Belsley or Mohler, or between the executors and Mohler, could bar this claim for services, if it in fact existed, and if it was not in fact brought forward and settled."

Whilst this may assert a legal proposition in the abstract, still, under the facts in the case, it may have misled the jury. As a general rule, a strong presumption arises that a settlement of accounts between parties embraces all the items each has against the other that are due, and this presumption is so strong that it devolves upon the party asserting the contrary to prove that the item was not due, or that it was by consent of the parties omitted from the settlement, or that it was omitted by accident or unintentionally by the party claiming it. Here, there was evidence tending to show, that whilst all other items embraced in a number of settlements were properly

Opinion of the Court.

charged and entered on appellee's books, charges for the services claimed were not so entered. And when it is considered that, according to the evidence, appellee had been rendering services for a long period of time, and that if he intended to charge for the same they were barred for more than half the period, it certainly was a fair presumption that no charge was intended, or the claim would have been made at some one or all of these settlements; and whilst such settlements would not be an absolute bar, still would raise so strong a presumption against the validity of the claim that it should have been explained or overcome by satisfactory evidence. See Bull v. Harris, 31 Ill. 487. The instruction should, to have been proper under the evidence, have been qualified so as to have informed the jury that these settlements raised a presumption that the claim was invalid, unless it was expressly reserved or had been unintentionally and by mistake omitted.

With slight modification to conform to what we have just said in reference to appellee's fifth instruction, appellants' fifth refused instruction should have been given; but the second and third of his refused instructions were not proper, as they asked the court to invade the province of the jury, and tell them the weight that should be given to the evidence of witnesses. Whilst it may be true, as a general rule, that evidence of admissions by parties is unsatisfactory, it is not necessarily and per se of that character. It may be, and frequently is, of the most satisfactory of all verbal testimony. When an admission is made understandingly and deliberately, and is testified to by an intelligent, truthful witness, of good memory, all know that such evidence is highly satisfactory and free from suspicion; but when casually made, and to an inattentive person, of bad memory, or such a want of apprehension as to make it doubtful whether he fully understood or heard what was said, or his manner shows that he is strongly biased in favor of the party calling for the admission, then, of course, such evidence is weak, and should be closely scrutinized-but these circumstances are for the consideration of the jury. To have been proper, these instructions should have been modified.

Syllabus.

It is urged that the evidence fails to sustain the verdict. We think this error is well assigned. If appellee was entitled to recover any sum whatever, the finding is, manifestly, greatly too large; but as the case will have to be passed upon by another jury, we shall refrain from considering the evidence in detail.

The judgment of the court below is reversed and the cause remanded.

Judgment reversed.

CHARLES PETERSON et al.

v.

JOHN W. C. NEHF.

FORMER ADJUDICATION—conclusive of rights of parties as to matters intolted therein. On the hearing of a bill filed by a creditor against the wife of his debtor, to set aside a deed from the husband and wife to a third party, and a deed from such third party to the wife, it appeared that the complainant in such suit had, after the execution of the deeds so sought to be set aside, purchased the property in said deeds described, from the husband, and taken a deed from him to one who held it in trust for complainant; that the wife refused to join in such deed, and afterwards filed a bill to set the same aside as a cloud upon her title, derived through the deed from the grantor of her husband and herself; that on the hearing of said bill, the trustee of complainant defended as his trustee. The complainant was himself present, both in person and by attorney, and the court rendered a decree in accordance with the prayer of her bill: Held, that this adjudication was conclu sive, as between the complainant and defendant, as to the validity of the title of defendant, and that the question could not be again litigated by complain. ant on a bill to set aside the deed to defendant.

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

Mr. THOMAS SHIRLEY, for the appellants.

Mr. HUGH CUNNING, for the appellee.

Opinion of the Court.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a creditor's bill, filed by Nehf, to cancel deeds of a certain lot of land, executed by Charles Peterson to William R. Weibolt, and by Weibolt to Catharine Peterson, wife of Charles Peterson, as in fraud of creditors, and without consideration, and to subject the property to the payment of complainant's judgment against Charles Peterson.

The court below decreed in favor of the complainant, and the defendants appealed.

It appears, that in 1868 Charles Peterson purchased the premises in controversy-lot 25, in block 2, in Henry Waller's subdivision of the north-west quarter of the north-east quarter of section 20, etc.-and borrowed from Nehf $800 to pay toward the purchase money, and the latter erected a house for Peterson on the lot, and took his notes therefor. Nehf afterward bought, at Peterson's request, his partner's half of a grocery, for $1600, and became partner of Peterson in the store. In 1872, Peterson agreed to sell said lot to Nehf for the latter's one-half interest in the store, $1000 cash, and payment of the notes held by Nehf against Peterson.

Peterson got the store, and made Nehf a deed for the lot, executing the deed, at the request of Nehf, to Philip Lehman, a brother-in-law. Mrs. Peterson refused to join in the deed, and, subsequently, filed a bill to cancel this deed, she claiming the property by deed from her husband to Weibolt and from Weibolt to her, in 1871, prior to Lehman's deed from Peterson, and she succeeded in her bill. Nehf then obtained judgment against Peterson on the notes against him, and on the 9th of February, 1874, filed the present bill.

It would seem to be sufficient for the disposal of this case, that there has been, as we regard, a previous adjudication of this subject matter of controversy.

Catharine Peterson, on March 29, 1872, filed her bill of complaint in the circuit court of Cook county, against Philip Lehman, setting forth that she was the owner in fee of this lot, and acquired title by deed from Weibolt, August 14, 1871; that

Opinion of the Court.

in December, 1871, Nehf, through his brother-in-law, Lehman, attempted to purchase the property of her, and succeeded, against her will and consent, in getting her husband to sign the deed, and with his signature alone to it they put the deed on record; that it was a cloud upon her title, and its removal was asked for.

It was set up in defense by Lehman, that the conveyance of the lot from Peterson and wife to Weibolt, and from Weibolt to Catharine Peterson, was fraudulent as to the creditor Nehf, in whose behalf Lehman made defense, on the ground that he had assumed to pay Nehf what Peterson owed him, and thus stood in the place of Nehf. Lehman, too, afterward, filed his bill of complaint against Peterson and wife, Weibolt, and Nehf, seeking to get from Catharine Peterson the same land, setting пр fraud in the conveyance thereof to Weibolt, and from him to Catharine Peterson.

Issues were made on the facts respectively set up, and both canses heard together, and upon final hearing the court decreed in favor of the complainant in the first named bill, finding the property to be the sole and separate estate of Catharine Peterson, and ordering the cancellation of the deed procured by Nehf, in the name of Lehman, from Peterson, and ordering a reconveyance of the premises to Catharine Peterson, and a decree was rendered dismissing the last named bill of Lehman. Lehman was but a trustee of Nehf. The attorney for Lehman, in the former suits, testified that he appeared for Lehman in those suits, and that he was also acting for Nehf. Nehf was present at the hearing, and was a witness. We think that in the former suits, under the evidence, Lehman should be regarded as representing Nehf, and that the decrees therein should be held to be equally binding upon Nehf as upon Leh

man.

This appears to be but a re-opening of the same question which has been once decided, namely: whether or not this was a fraudulent conveyance to Mrs. Peterson, as against creditors. The former decision, in favor of its validity, we think, should be held as conclusive between these parties.