#### National Steam Heating Company, Appellee, v. William C. Moulton, Appellant.

Gen. No. 17,886.

(Not to toe reported in full.)

Appeal from the County Court of Cook County; the Hon Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

Affirmed.

Opinion filed October 15, 1913.

Statement of the Case.

Action on contract toy National Steam Heating Company, a corporation, against William C. Moulton. From a judgment for plaintiff for $588.90, defendant appeals.

*484Abstract of the Decision.

1. Evidence, § 223 * —when hearsay evidence is not admissible. In an action for the recovery of a balance due for installing heating apparatus, where there was no evidence that plaintiff had damaged a boiler, or that such boiler was in fact damaged, held that a certain letter concerning the damage was not admissible in evidence, being merely hearsay and being the statement of third parties in their own interest.

2. Instructions, § 62*—what facts may be assumed. In an action for a balance due upon a contract for installing heating apparatus, held that the giving of an instruction which assumed that delay of the plaintiff in completing the work was caused by the defendant, or those working for him, was not prejudicial error even if not based on the evidence, since the plaintiff was entitled to recover, the defendant did not prove any defense either by way of set-off or recoupment and there was no damage due to delay.

Lewis, Folsom & Streeter, for appellant.

Thomas J. O’Hare, for appellee.

*

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

Mr. Justice Duncan

delivered the opinion of the court.