As to that portion of the opinion which sustains the trial court on the propositions of law involved in this appeal I find no difficulty in concurring. On the question raised and argued by appellant that the judgment of the trial court is manifestly against the weight of the evidence, *Page 309 I am thoroughly convinced that the record before us fails to sustain the judgment by a preponderance of the evidence.
The only evidence in support of plaintiff's claim is his own testimony. He testified to three purchases of Campbell's asparagus soup at prices above the ceiling fixed by the office of price administration. He testified that the first purchase was made November 19, 1942, of two cans of Campbell's asparagus soup for 25 cents. This purchase he claimed was made by him at defendant's store from a Mrs. Phillips. His second purchase, according to his testimony, was on December 11, 1942, and from whom he could not say, although defendant's evidence is clear and conclusive that only Mrs. Phillips and the manager of the store were employed there at that time. He had been trading at that store for 21 years; knew that Campbell's asparagus soup had been selling at three cans for 29 cents; and raised no protest nor said anything to Mrs. Phillips nor any one else at the time of his purchase about the price being too high. His counsel offered in support of his claim and corroborative of his testimony cash-register receipts, one bearing date November 19 and the other December 11, 1942. Each one contained at the top the words, "Consumer's Sanitary Coffee Butter Stores," a space and then the date, followed by "0.25" and "Thank You, $00.25." In the space between the heading and the date there was written in plaintiff's handwriting the words and figures "2-asparagus soup." Both these cash-register receipts were objected to but the court admitted them in evidence. The third sale, to which he testified, was on December 14, 1942, at which time he claimed to have purchased three cans of Campbell's asparagus soup for 38 cents. The same kind of cash-register receipt bearing that date, with a similar heading with the figures 0.25 and 0.13 stamped thereon was followed by a space, beneath which were the words and figures stamped thereon, "Thank you, $00.38." In the space was written "3 asparagus soup" *Page 310 which plaintiff testified was written by a clerk, a high-school girl whose name he did not know, who was working at the store. All these receipts were admitted but the third is eliminated from consideration because the trial court, on the positive proof that no such high-school girl was working there at that time, found in favor of defendant as to the third alleged purchase.
Clearly the two receipts of November 19 and December 11, were inadmissible as to the writing thereon and the objection should have been sustained to that extent. Admitted as they were they contained self-serving statements which tended to support the facts in dispute that plaintiff had purchased on those dates the two cans of asparagus soup on each occasion for 25 cents. Statements or declarations as to the act of a party in corroboration of his theory of the case or of any fact favorable to him, whether oral or in writing, are inadmissible in evidence on his own behalf except where they are a part of the res gestae or made in the presence of the opposing party. (People v. Foster,288 Ill. 371, 378.) Here the writing "2-asparagus soup" was written on the receipts by plaintiff.
Since no error is assigned on the admission of those self-serving statements the case cannot be reversed for that error. But the probative value of these exhibits may be considered by this court in determining the alleged error that the judgment is manifestly against the weight of the evidence.
Two witnesses testified positively that they did not make the sales in question to plaintiff. The heading on the cash-register receipts was not that of defendant, The Kroger Grocery Baking Company, and there was no showing that defendant was operating its store at 11 Harrison street, Oak Park, at the times in question as "Consumer's Sanitary Coffee Butter Stores," the name shown on the receipts. Plaintiff was completely discredited as to the third alleged purchase and by the cash-register receipt *Page 311 he claimed to have received at that time, and the trial court found against him. The same two witnesses clearly contradicted him as to the first two purchases. The two employees were not shown to have any interest in the result of the suit while plaintiff stood to gain financially by his testimony. The exhibits were without probative value and plaintiff's testimony standing uncorroborated does not constitute a preponderance of the evidence, in view of the contradiction by oral testimony and circumstances connected with the series of alleged transactions.
Plaintiff admitted that he had been purchasing Campbell's asparagus soup for 3 cans for 29 cents and Campbell's chicken soup at 2 cans for 25 cents. Defendant's exhibit 3, ceiling price list, shows that those were the price ceilings set forth on the list. No list price was included for single cans nor for two cans of asparagus soup. Only three kinds of Campbell's soup were listed at 2 for 25 cents. They were bouillon, consomme, and chicken soup. There had never been any change in the selling price of Campbell's asparagus soup. Plaintiff claimed that he had been buying chicken soup but not at that time because it had all been closed out. It is improbable that plaintiff would have made the purchases with knowledge that the price was above the ceiling and made no complaint. The trial court properly held that he failed to prove by a preponderance of the evidence the third alleged purchase and according to my appraisal of the evidence the first two alleged purchases were as lacking as the third in sufficient credible evidential support. For these reasons it is my opinion the judgment should be reversed solely on the ground that the judgment is contrary to the manifest weight of the evidence. *Page 312