Kreigh v. Sherman

Mr. Justice Craig delivered the opinion of the Court: This was an action of assumpsit, brought by appellants, in the Superior Court of Cook county, against John J. Sherman, to recover the amount of a promissory note which he executed on the 15th day of November, 1876, payable to the order of appellants, on demand, after date. The defendant pleaded to the action, first, that he was a minor when the note was executed; and secondly, that the consideration of the note was a sum of money due and owing upon a gambling contract, under which he purchased options on the board of trade, in violation of the statute. Upon a trial of the cause before a jury, a judgment was rendered in favor of the defendant, which was affirmed in the Appellate Court, and as the amount involved exceeded $1000, the plaintiffs appealed to this court, as they had a right to do, under the statute. The affirmance of the judgment, however, by the Appellate Court, implies a finding of the facts in the same way they were found in the trial court. In that court, on the evidence introduced, it was found that defendant was a minor when he executed the note, and that the note was given for money lost by defendant in dealing in options on the board of trade. The finding of the jury was based on controverted facts, and that finding, under the statute, can not be reviewed here, as the judgment of the Appellate Court is final, so far as controverted questions of fact are involved. Only questions of law that arise on the record'remain to be considered. On the trial the family bible, belonging to defendant’s mother, which contained the date defendant was born, was offered and admitted in evidence. Whether this evidence was competent, in the absence of proof that the mother, in whose handwriting the entry was made, was dead, or beyond the reach of the court, so that her evidence could not be produced, it will not be necessary here to determine, as there was other evidence upon this point sufficient to sustain the finding of the jury. The defendant himself testified on the trial that he was a minor when the note was executed. His evidence was in no manner contradicted or impeached, and if thé bible had been ruled out by the court, the result would have been the same. If the court, therefore, erred in admitting the evidence objected to, it was an error that did no harm, and an error which does no injury can not be urged as a ground for reversing a judgment. During the trial, on the re-direct examination of appellant Davies, the court asked the following questions, which appellants urge were erroneous: Q. “Was there no understanding between you and Sherman that he was to furnish pork or to furnish grain ? A. “No understanding at all. Q. “Now, wasn’t the whole of this transaction, from beginning to end, merely to charge him with the differences that may have grown out of the transactions ? A. “No, sir.” We perceive no special objection to the questions, but if they were improper, as no objection was made to the questions at the time, the objection made for the first time here comes too late. The court modified three of appellants’ instructions, and gave them as modified. This action of the court is relied upon as error. The modification of the instructions consisted merely of a few added lines to each, in which the attention of the jury was called to the fact that it was their duty to determine the nature and character of the transaction between-the parties, from all the evidence in the case. The modifications contain no erroneous propositions of law, and we do not think the jury could have been misled by them. On the application of appellee the court gave five instructions to the jury, which were excepted to by appellants. We have examined the instructions carefully, and we perceive no substantial objection to them. Indeed, the law involved in the ease seems to have been fairly given to the jury, and, so far as the record discloses, the parties have had a fair and impartial trial, and we perceive no ground whatever for disturbing the judgment of the Appellate Court. The judgment will be affirmed. Judgment affirmed.