Opinion of the Court.

care of him; that the inability of the deceased to take care of himself during most of the time charged for, was greatly exaggerated by claimant, and her charges therefore exorbitant.

All these defenses were submitted to the jury on the evidence pro and con. Included in these controverted questions of fact is the one as to whether or not the agreement was entered into in Kansas, as affirmed by claimant and denied by the administrator, and it has been settled adversely to appellant.

The trial court, at the instance of appellant, submitted to the jury the question, “State, if you find an express contract, when and where it was made," and they answered, "Kansas, while deceased was there to procure claimant's services." Having asked for this special finding of fact, and the jury having returned an answer to the interrogatory, if appellant thought the finding was not supported by the evidence he should have applied for a new trial, assigning that as a reason. (2 Thompson on Trials, sec. 2701, n. 7.) This he did not do. There was, however, evidence tending to support the finding, and therefore the judgment of affirmance in the Appellate Court is conclusive; also, the question as to whether claimant showed such facts as would excuse her from further performarrce of that contract, and entitle her to recover on the quantum meruit, was controverted, and is now settled against the contention of appellant, unless he can show that there was some error of law in submitting that question to the jury.

It is contended that improper testimony was permitted to go to the jury on behalf of claimant, over objection of appellant. We have examined the different items of evidence falling within these objections, and are unable to see wherein appellant has been prejudiced in that regard. All the evidence admitted over objection tended to prove the issues raised on the trial, and came from competent sources. Its weight was for the jury. The fact that the jury took the written claim filed, into their jury room, when they retired to consider their verdict, without the consent of appellant, was not such an irregularity

Opinion of the Court.

as should be allowed to work a reversal of the judgment below, if it was an irregularity at all. It will not be presumed, in the absence of all showing to that effect, that appellant was prejudiced thereby.

It is also insisted, that the trial court erred in giving the second, third, fourth, fifth, sixth, seventh, tenth, eleventh and thirteenth instructions on behalf of appellee, and in refusing certain instructions asked by appellant.

At the request of appellant, the jury, in addition to the foregoing special finding, were required to and did answer the following questions:

"4. If you allow claimant, what rate per day?—A. One dollar."

"5. Who do you find furnished the provisions, coal and fuel for the family during the time ?-A. John A. Moore."

"2. Was the contract express or implied?-A. Verbal, and an express contract."

Even if some of the instructions criticised were inaccurate, and even though some of those refused contained correct propositions of law, still the judgment below can not be reversed for that reason, if it sufficiently appears from these special findings of fact that the giving or refusing of such instructions had no influence upon the verdict. 2 Thompson on Trials, sec. 2699, and other authorities cited in note 8.

This rule would be a sufficient answer to the contention of counsel for appellant as to at least a part of the instructions objected to, but we do not deem it necessary to make a special application of it to this case, because we agree with the Appellate Court in the conclusion that the instructions, taken together, presented the law fully and fairly to the jury, and that the refused instructions were properly refused.

We are satisfied with the judgment of affirmance in the Appellate Court, and with the reasons for doing so stated in the opinion of Upton, J.

Judgment affirmed.

Syllabus. Brief for the Appellant.

WILLIAM H. GRUBEY

v.

THE NATIONAL BANK OF ILLINOIS.

Filed at Ottawa May 14, 1890.

1. EVIDENCE-to prove a gambling transaction. To prove that certain dealings of a party on the board of trade, through his broker, with third persons, were gambling contracts, the party was asked if the several transactions shown in a certain statement were in fact settled between such party and his broker: Held, that the question was properly disallowed, as the settlements between the party and his broker had no tendency to prove that the broker had, as agent, engaged in gambling transactions with third parties.

2. SAME-hearsay. Where one deals on the board of trade only through his broker, a question put to the former as a witness in his own behalf, calling for a statement of facts not within his personal knowledge, but only such facts as had been reported to him by his agent, is properly disallowed. In such case the broker should be called to testify to the facts.

3. ERROR-in excluding evidence-cured by its subsequent admission. The court refused to allow a party called as a witness in his own behalf, to answer a certain question, but allowed him to answer another question which embraced all matters contained in the former one: Held, that if the refusal to allow the witness to answer the first question was error, it did no harm.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Mr. FRANCIS A. RIDDLE, and Mr. JOHN S. STEVENS, for the appellant:

In order to show the intention of the parties to this particular transaction, it was competent to show how they were in the habit of dealing together in like transactions prior to the one in controversy. Phillips v. Roberts, 90 Ill. 493; Doan v. Duncan, 17 id. 272; Colderwood v. McCrea, 11 Ill. App. 543. Appellant insists, that having been permitted to testify that the broker never called upon him to receive, deliver or pay for

Brief for the Appellee. Opinion of the Court.

any of the grain, he should have been allowed to answer this question, immediately following: "How were, if you know, all the several transactions shown in these statements in fact settled between you and your broker?"

The assignment of a note based upon a gambling consideration does not in any manner affect the maker's defense. Crim. Code, sec. 131; Mallett v. Butcher, 41 Ill. 382; Chapin v. Dake, 57 id. 296; Tenney v. Foote, 4 Ill. App. 594; Pearce v. Foote, 113 Ill. 228.

Mr. MATTHEW P. BRADY, for the appellee:

It was shown by appellant's testimony that all the business he had on the board of trade was transacted for him by Henrotin, and that personally he had no knowledge of it, and gave it no attention. It was therefore immaterial to inquire whether or not appellant had received any grain that had been bought for him,―delivery to his broker would have been sufficient.

The settlement between appellant and his broker was immaterial on the question of the character of the dealing with third parties.

Appellant having no personal knowledge of the dealings, could not testify as to them. The defense of the principal can not be proven by the statements made to him by his agent. Primm v. Legg, 67 Ill. 500; Olive v. Hester, 63 Tex. 190.

Per CURIAM: This was an action of assumpsit, brought by the National Bank of Illinois, at Chicago, against William H. Grubey, on a promissory note, as follows:

"CHICAGO, ILL., May 9, 1887.

"Sixty days after date I promise to myself, $1000, payable at 113 S. Clark. six per cent per annum until paid.

(Signed.)

pay, to the order of

Value received, with

WM. H. GRUBEY."

Indorsed: "Pay to the order of the National Bank of Illinois, at Chicago.-Wm. H. Grubey."

Opinion of the Court.

The declaration contained one special count on the note, and also the common counts. The defendant pleaded the general issue, and when the cause was called for trial, plaintiff entered a nolle prosequi as to the common counts. A trial was had before a jury, resulting in a judgment in favor of plaintiff for the amount of the note, and interest, which, on appeal, was affirmed in the Appellate Court.

On the trial in the Superior Court, the plaintiff read in evidence the note described in the declaration, and the defendant claimed, as a defense, that the note was given for gambling transactions on the Board of Trade, and was therefore void. No question is raised in the argument in regard to the ruling of the court on instructions, but it is claimed that the court erred in refusing certain evidence offered by the defendant, and this is the only ground relied upon to reverse the judgment.

The defendant was a witness in his own behalf, and he was asked whether or not any grain bought by him, as shown by certain statements, was received by or delivered to him. The court refused to allow the witness to answer the question, and this is the first error complained of. It will not be necessary to stop to inquire whether the court erred in this regard or not, as the next question propounded to the witness, which was answered, substantially embraced all contained in the other one, and if the court erred, the error did no harm. It was as follows: "I will ask you whether or not, during the time covered by these statements that you have seen, you were called on by Mr. Henrotin, as your broker, to receive or deliver or pay for any grain?" Answer, "No, sir."

It is next claimed that the court erred in refusing to allow the witness to answer the following question: "Now, were the several transactions shown in these statements in fact settled between you and your broker?" The defense relied upon was that the transactions were gambling contracts. The statements alluded to in the question show, as well as does defendant's testimony, that the transactions were between the defendant,

6-133 ILL.