#### Mrs. Ada Duke, Defendant in Error, v. Fred Schlegel, Plaintiff in Error.

Gen. No. 18,305.

1. Witnesses — competency of wife. The testimony of defendant’s wife as to a conversation held previous to her marriage, in which plaintiff claims defendant agreed to pay her hoard, is not incompetent under R. S. ch. 51, § 55.

2. Appeals and eeeoks — harmless error. Where the testimony of a witness that she “did not hear” defendant make a promise is erroneously excluded, and there is conflicting testimony as to her having been present during the conversation, the error in rejecting such testimony is not ground for reversal, the judgment for plaintiff not being against the manifest weight of the evidence.

Error to the Municipal Court of Chicago; the Hon. C. E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed.

Opinion filed March 25, 1913.

JohN J. Poulton, for plaintiff in error.

No appearance for defendant in error.

Mr. PresediNG Justice Clare

delivered the opinion of the court.

Suit was brought by plaintiff in the Municipal Court against the defendant for $40, claimed to he due for the board of Adeline Ke'noeke alleged to have been furnished her at the request of the defendant and upon his promise to pay for same. Prior to the time of the trial Miss Kenoeke had become the wife of the defendant. The only question of law involved is the ruling by which her testimony was excluded at the trial. We agree with the defendant that she was a competent witness. Mueller v. Rebhan, 94 Ill. 142. Her testimony was not made incompetent by section 55 of chapter 51 of the revised statutes. However, we find incorporated in the record a statement of what it is claimed by the defendant she would have sworn to had *385she been allowed to testify. The substance of this was that sbe did not bear tbe defendant make tbe promise to pay for ber board. From tbe testimony of one of tbe witnesses for tbe plaintiff it would appear that sbe was not present when tbe conversation was bad. Another witness stated that sbe was present.

On a review of tbe record we are of tbe opinion that tbe judgment should not be reversed as being against tbe manifest weight of tbe evidence. We are further of tbe opinion that if tbe testimony offered bad been received tbe finding and judgment should properly have been for tbe plaintiff. It follows therefore that tbe error in tbe rejection of tbe testimony should not cause a reversal of tbe case, and tbe judgment will be affirmed.

Affirmed.