#### David Allison et al. v. John H. Leslie et al.

Sales—Amount Due—Recovery of—Set-off—Failure to Deliver—Evidence—Dam ages.

What the correct rule of damages is, in a given case, is a question of law, and where the trial is by the court, no question of law properly arises on an appeal unless propositions of law have been submitted to the trial court.

[Opinion filed May 5, 1891.]

Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.

Messrs. Morris & Ganse, for appellants.

Messrs. Gartside & Leffingwell, for appellees.

Per Curiam.

Appellants brought an action to recover the price of certain apricots sold to the appellees, and appellees filed a claim of set-off for damages for a failure to deliver goods of the required quality within a reasonable time. The case was submitted to the court without a jury and a finding was had against appellants on which judgment was entered. Appellants complain that appellees introduced evidence of damage on a wrong theory, that is, supporting a wrong measure of damages, but appellants saved no exception to any such evidence, and therefore are not in condition to complain here of its admission.

An exception to the finding of the court was taken, but there were no propositions of law submitted to the court to hold, so it must be presumed that the court proceeded on correct legal principles, and the law was properly applied to the facts as found. Counsel admit that it must be assumed here that the court found that the goods were not delivered within a reasonable time. It must also be assumed that the *442court found that they were not of the quality contracted for. There is in the record evidence which fully sustains the finding of the court as to the amount of damages. While there is a conflict in the evidence, it must be held to be settled against appellant. On such conditions of the record, this court is powerless to interfere with the judgment rendered in the court below.

What is the correct rule of damages in any given case, is a question of law, and where the trial is by the court, no question of law properly arises on an appeal unless propositions of law have been submitted to the trial court. McIntyre v. Sholty, 121 Ill. 662; Christy v. Stafford, 123 Ill. 465.

There is no error in the record available to appellants and the judgment must therefore be affirmed.

Judgment affirmed.