#### L. H. Brink and Ignatz Pilat, trading as Brink and Pilat, Plaintiffs in Error, v. M. Finkelstein and Sam Rosenthal, Defendants in Error.

Gen. No. 20,835.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed January 11, 1916.

Statement of the Case.

Action by L. H. Brink and Ignatz Pilat, trading as Brink and Pilat, against M. Finkelstein and Sam Bosenthal for goods sold and delivered by plaintiffs to defendants at plaintiffs’ request. From a judgment for defendants, after a trial by the court, plaintiffs appeal.

Plaintiffs were commission merchants and Finkelstein was a dealer in poultry. Bosenthal was Finkelstein’s real estate agent and accommodated him at times by giving him checks for cash. The goods sued for were sold and delivered to Finkelstein between December 9 and 14, 1912. Plaintiffs had previously sold and delivered to him similar goods and received payments therefor in the form of checks signed by Bosenthal. It was claimed by plaintiffs that before the sale and delivery of said goods, Bosenthal had promised to pay for them over the telephone. Bosenthal denied that he had made any such promise, or that he ever talked over the telephone to or saw plaintiffs until after the transactions sued on were had, when he endeavored to effect a settlement. He said that when he gave the checks in question it was for cash given him by Finkelstein to the amount of plaintiffs’ bills. He was corroborated by Finkelstein.

Q. J. Chott, for plaintiffs in error.

*400Abstract of the Decision.

Frauds, Statute of, § 126*—when evidence sufficient to sustain finding that promise not original. Where a merchant sold goods to another at different times and customarily received the check of another person in payment, held, in action against the buyer and such other person for goods sold and delivered, in which the only question was whether such other person had made an original promise to pay for the goods, that a finding by the court that such promise had not been made was sustained by the evidence.

Nicholas J. Pritzker, for defendant in error Sam Rosenthal.

Mr. Justice Barnes

delivered the opinion of the court.