#### M. Weinstein, Appellant, v. Pete Garcinski, Appellee.

(Not to foe reported in full.)

Appeal from the City Court of Bast St. Lopis; the Hon. Robebt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.

Affirmed.

Opinion filed July 28, 1914.

Statement of the Case.

Action by M. Weinstein against Pete Garcinski, to recover the sum of $100 claimed to be due from defendant to plaintiff. The claim arose out of a transaction regarding checks received by plaintiff from defendant. It appeared that defendant brought a number of checks which he had cashed for other parties to plaintiff’s place of business and told the plaintiff that he needed more funds to cash checks and that the plaintiff took the checks, which he claims amounted to $452.45, and defendant claims amounted to $552.37; that plaintiff gave to defendant at that time $300 in cash; that *354later the wife of defendant called for the balance and plaintiff informed her that he had not obtained the cash on the checks and at her request gave her $245.12 in checks and $7.33 in cash. Plaintiff claims the understanding was that she was to return and pay him in cash the sum of $100, but this is denied by defendant.

Abstract of the Decision.

1. Evidence, § 390 * —when question ashed of party not objectionable as calling for conclusion. In. an action to recover a certain sum claimed to be due to plaintiff from defendant, where the defendant was permitted to be asked the question, “Do you owe plaintiff anything now?” and defendant answered, “I don’t owe one penny,” held that the question was' not objectionable as calling for a conclusion of the witness on the issue, since it is proper for defendant as a party to the suit to deny the claim of plaintiff in as broad terms as the plaintiff made his claim.

2. Appeal and error, § 1523*—when error in instruction will not reverse. The giving of an instruction which is improper for the reason it calls upon the jury to determine what are the material issues in the case, held not reversible error where the issues were simple and it appeared that substantial justice had been done.

3. Appeal and error, § 1401*—when verdict will not be disturbed. The Appellate Court will not set aside a verdict on the *355ground that the jury have reached a wrong conclusion as to the facts or a different conclusion than that entertained by the court, unless the record shows that the verdict is against the clear preponderance of the evidence.

*354The suit was originally commenced before a justice of the peace and plaintiff had judgment. An appeal was taken to the City Court of East St. Louis where upon a trial before a jury a verdict was returned in favor of defendant and judgment was entered on the verdict and against the plaintiff for costs. To reverse the judgment, plaintiff appeals.

Alexander Flannigen and Jesse M. Freels, for appellant.

J. E. Grace, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Harris

delivered the opinion of the court.