#### The Town of Cicero v. James A. Sackley et al.

Filed at Ottawa January 19, 1897.

Appeals and errors —when Appellate Court’s finding of fads differing from trial court’s is conclusive. Where the Appellate Court’s finding of facts on the final determination of a suit at law differs from that of the trial court, and the facts so found are recited in its judgment, as required by section 88 of the Practice act, (Laws of 1877, p. 153,) the facts in controversy are conclusively settled.

Sackley v. Town of Cicero, 64 Ill. App. 181, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Edmund W. Burke, Judge, presiding.

F. W. Pringle, and Henry R. Pebbles, for appellant.

R. S. Thompson, for appellees.

Per Curiam:

This was an action brought by James A. Sackley and Peter Peterson, a firm known as Sackley & Peterson, against the town of Cicero, to recover a bal*514anee due on a contract entered into by the respective parties, under which they furnished the labor and materials and improved Washington boulevard, from the east line of Robinson avenue to the center line of Harlem avenue, in the town of Cicero. In the circuit court, by agreement, a jury was waived and a trial had before the court, which resulted in a judgment in favor of the plaintiffs for $1127.10. The plaintiffs, not being satisfied with the amount of the judgment, appealed to the Appellate Court, where, upon a hearing, the Appellate Court reversed the judgment of the circuit court and entered a judgment in favor of the plaintiffs for $3410.95. To reverse this judgment the defendant appealed.

The Appellate Court found the facts different from the circuit court, and recited the facts as found in its final judgment, as required by the statute. Upon looking into the record it will be found that plaintiffs were to be paid $2.95 per lineal foot for the work agreed to be done for the town. On the trial in the circuit court that court found that the number of lineal feet of road-bed made and completed under the contract was 12,149.6, but upon this point the Appellate Court made the following finding: “That number of lineal feet of such road-bed, measured in one line along the center of Washington boulevard from Robinson avenue to Harlem avenue, was 12,149.6, but that the street and alley intersections improved by appellees under said contract, lying in Washington boulevard but outside the center thirty-eight feet of said boulevard, reduced to lineal feet of roadway thirty-eight feet wide, equal 774.18 lineal feet in addition, being 774.18 lineal feet more than appellees were found by the circuit court to be entitled to be paid for at $2.95 per lineal foot.”

Under section 88 of the Practice act, where any final determination of a cause in the Appellate Court shall be made, as the result, wholly or in part, of the finding of facts concerning the matter in controversy different from the finding of the circuit court, it shall be the duty *515of the Appellate Court to recite in its" final judgment the facts as found, and the judgment of the Appellate Court shall be conclusive as to all matters of fact in controversy in the said cause. Here the Appellate Court found that there were 774.18 lineal feet of road-bed more than plaintiffs had been allowed for in the circuit court, and entered judgment for the whole number of feet at $2.95 per lineal foot,—the contract price. So far as appears from the record the judgment of the Appellate Court was fully warranted by the facts, but whether that is so or not is a matter that cannot be inquired into on this appeal.

No question is made on this record in regard to the admission or exclusion of evidence, and no propositions were submitted to the circuit court by either party to be held as law.

As we perceive no error in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.