#### Joseph Lesczauskis, Appellee, v. William Downs, Appellant.

Gen. No. 23,122.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.

Affirmed.

Opinion filed November 30, 1917.

Rehearing granted January 19, 1918. Opinion on rehearing filed March 13, 1918.

Statement of the Case.

Action by Joseph Lesczauskis, plaintiff, against William Downs, defendant, to recover on a bond signed by defendant as surety for the faithful performance of a building contract. From a judgment for plaintiff for $2,234.34, defendant appeals.

Henry L. Wilson, for appellant.

Charles C. Bodenstab, for appellee.

*

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

Mr. Justice O’Connor

delivered the opinion of the court.

*258Abstract of the Decision.

1. Judgment, § 493 * —when record of judgment against principal admissible against surety. A record of a judgment against the principal, a building contractor, is admissible in an action against the surety on the bond where there is no contention that any fraud was used in obtaining the judgment against the "principal, or that the various items or expenses which it was claimed were expended in the completion of the building, upon default of the contractor, were not correct, or that the amount of the judgment making up these items was not correct, and constituted a prima facie case.

2. Appeal and error, § 1411*—when finding of jury not disturbed. A finding of a jury based on conflicting evidence, and sustained by the trial judge, will not be disturbed on appeal.

3. Judgment, § 493*-—what does not affect admissibility of against principal in action against surety. The admissibility of a record of a judgment against the principal on a building contractor’s bond, in an action against the surety on the bond, is not affected by the fact that the first action was in assumpsit and the later action was in debt.