#### St. Bernard Coal Co. v. Digory W. Baker and Henry Baker.

1. Verdict—Conclusive if Sustained by the Evidence.—A judgment founded upon a finding of facts will not be reversed unless such finding is manifestly against the weight of the evidence.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed November 18, 1895.

Statement oe the Case.

Prior to May 4, 1894, plaintiff had sold and shipped to the defendants, coal, for which $370.08 was then due.

On the 4th day of May, defendant Henry Baker gave Mr. Bridgeman, plaintiff’s agent, an order for ten cars of nut coal.

On the 5th day of May, at the office of the agent, defendant Henry Baker ordered fifteen cars of lump coal, and added to the previous order of nut five cars more of nut, making in all fifteen cars each of nut and lump.

There is a controversy as to the fact of an acceptance of *452the orders; the defendant claiming that Mr. Bridgeman accepted, while plaintiff contends there was no acceptance, but that the orders given were merely sent into the mines for acceptance and were not accepted.

The plaintiff sued for the $370.08, which is admitted, and the defendant made a counter claim for damages for nondelivery of seven hundred and fifty tons of lump coal. There was a trial by jury and a verdict rendered for the defendants for $450.

John H. Bradley, attorney for appellant.

Edward W. Cullen, attorney for appellees.

Mr. Justice Waterman

delivered the opinion oe the Court.

The determination of this cause depends upon the question of fact which has been found adversely to appellant.

We are unable to say that there was any such preponderance of evidence in favor of appellant as would warrant a reversal of this judgment. We see no objections to the fifth instruction, of which appellant complains. It correctly states the law, and did not, so far as we can see, have a tendency to divert the jury from the main controversy of fact. The damages are within the showing made by the evidence.

The judgment of the Circuit Court is affirmed.