#### C. W. Dameier v. W. A. Bayor.

Filed at Ottawa June 23, 1897

Rehearing denied October 12, 1897.

1. Appeals and eeeoes—sufficiency of evidence to sustain verdict is a question of fact. The sufficiency of the evidence to sustain the verdict is purely a question of fact, which, in suits at law, is finally settled by a judgment of affirmance by the Appellate Court.

2. Set-off—debts, to be the subject of set-off, must be between the par-lies to the action. A joint indebtedness cannot be set off against a separate demand, nor can a separate demand be set off against a joint indebtedness.

Dameier v. Bayor, 68 Ill. App. 477, affirmed.

*548Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John Barton Payne, Judge, presiding.

John N. Jemison, for appellant.

W. H. Craig, for appellee.

Mr. Justice Craig

delivered the opinion of the court:

This was an action of assumpsit brought by W. A. Bayor, ag'ainst C. W. Dameier, to recover an amount claimed to be due for rent of a certain lot, and for a quantity of brick and stone sold and delivered by the plaintiff to the defendant. In the Superior Court the parties, by agreement, waived a jury and a trial was had before the court, resulting in judgment for the plaintiff, which, on appeal, was affirmed in the Appellate Court.

On the trial the plaintiff put in evidence a contract in writing, as follows:

> “I hereby agree to purchase from W. A. Bayor a lot of brick and rubble stone delivered to 1429 Wabash avenue, for which I agree to pay at the rate of five dollars per M for brick and eight dollars per cord for stone, the amount of brick not to exceed 325 M and stone not to exceed 107 cords.

> C. W. Dameier.”

The plaintiff then called witnesses and proved the quantity of brick and stone delivered under the contract. It is claimed by appellant that the evidence offered did not prove a sale and delivery of the material sued for. The sufficiency of the evidence to sustain the judgment was purely a question of fact, not reviewable here.

The defendant undertook to establish a set-off. The set-off claimed grew out of a written contract executed by the plaintiff and Dameier & Son. It will not be necessary to enter into any argument to establish the proposition that any damages or moneys due from W. A. Bayor, the plaintiff, to Dameier & Son could not properly be set *549off in an action brought by Bayor against Dameier alone, on a contract existing solely between these two parties.

It is a familiar rule that debts, to be the subject of set-off, must be mutual between the parties to the action. A joint indebtedness cannot be set off against a separate demand, nor can a separate demand be set off against a joint indebtedness. (Hilliard v. Walker, 11 Ill. 644; Coates v. Preston, 105 id. 470.) We think the court did not err in holding that demands due Dameier & Son were not, under the pleadings and facts of this case, a proper set-off against plaintiff’s action.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.