#### Herman L. Wolff for use of Barnett Zollo, Defendant in Error, v. Ernest M. Cross, Plaintiff in Error.

Gen. No. 18,160.

(Not to be reported in full.)

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

Affirmed.

Opinion filed October 15, 1913.

Statement of the Case.

Action by Herman L. Wolff, for use of Barnett Zoilo, against Ernest M. Cross, trading as E. M. Cross *455& Co., for damages. From a judgment for plaintiff for $366.92, defendant brings error.

Abstract of the Decision.

1. Appeal and eeror, § 1414 * —when finding of court will not he sustained. In an action for damages caused hy the failure of a defendant to deliver certain eggs according to quality, held that the controlling question of fact was whether defendant’s salesman substituted different eggs for those actually purchased by plaintiff, and the evidence being conflicting such finding was not unwarranted.

2. Damages, § 179*—what is proper evidence of damage. In an action for damages caused hy the failure to deliver eggs to plaintiff according to quality, evidence of a witness interpreting the report of an inspection of the eggs by an employe of the Chicago Butter and Egg Board was incompetent, but harmless, when the report verified the witness’ statements.

Kruse & Peden and R. C. Merrick, for plaintiff in error.

Charles J. Herman, for defendant in error; Douglas C. Gregg, of counsel.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Baume

delivered the opinion of the court.