learning that fact and knowing that plaintiff had a mortgage on his personal property for $2000, ordered the deliveries stopped. There had been considerable advance in the price of coal at that time and there were further advances afterward, and plaintiff purchased coal from time to time, as needed, at the advanced prices. The instruction presented by defendant and modified, stated that if there was a well known and universal custom in the coal trade at Chicago that made it the duty of a purchaser of coal for his business to begin during the season to take the coal in substantially equal monthly installments, and the plaintiff failed to do so, the defendant was not bound to deliver coal under the alleged contract and the plaintiff could not recover. The court added: "Unless the jury believe, from a preponderance of the evidence, that there was a specific contract between the parties on the subject, and that such contract, if any, was different from such custom, if any. What the facts are you must determine from the evidence introduced before you in this case." The ground upon which it is said the modification was erroneous is, that there was no specific contract on the question of delivery. The court ought to have refused the instruction because there was no evidence of any custom to take coal in substantially equal monthly installments. There was evidence that if a retail dealer made a contract for a season's supply, or a share of it, for his business, it was the custom to begin to haul in accordance with his agreement, or, in other words, to keep his contract. If he contracted for such coal as his business would require, he would be expected to draw the coal in proportion to the requirements of his business from time to time, based on the demand, and would not be required to haul as much during the summer months as later, when the coal business set in. Plaintiff testified that he bargained for the specific amount of coal at any time to suit his convenience, and there was sufficient evidence on which to base the modification. The instruction, even as given, was more favorable to defendant than the evidence warranted. The second proposition of counsel is, that it was necessary for the plaintiff to prove that he was ready, willing and able to receive and pay for the coal, and that the evidence did not sustain the averments of the declaration in that respect. The court instructed the jury, at the request of defendant, that where no time of payment was specified, as in this case, it was the duty of the plaintiff to pay for the coal as received, and if they believed he did not pay for the coal received, or offer to pay for it as received, they should find for the defendant. It is not claimed that any instruction offered on that subject was refused or that there was any erroneous ruling, and we do not review decisions of the Appellate Court on questions of fact. The next point made is, that the verdict was contrary to the law because it was contrary to two instructions given to the jury. The first of these instructions was to the effect that when the defendant refused to deliver coal, about October I, it was the duty of the plaintiff to go into the market and buy the coal at the best price he could, and failing to do so he could not recover from the defendant the difference between the contract price and the market price at the time of such refusal. The second told the jury that if it was reasonably practicable for the plaintiff to have made a contract at the time of the refusal of defendant for the delivery of the coal remaining undelivered, it was his duty to do so, and failing in that he could not recover for more than the difference between the market price of coal on the day the contract was repudiated and the contract price. It is evident that the jury disregarded the first instruction, but it does not follow that the verdict was contrary to the law. That instruction was not the law as applied to the theory of either party or any evidence in the case. In any possible view of the alleged contract, the coal was to be delivered either as required in plaintiff's business or as called for by him during a considerable period of time. He had no coal yard, and it was understood that the coal was to be hauled to his customers. He was not bound to go into the market, on refusal to deliver coal then needed, and buy the whole amount of coal which he did not require or want. There had been a considerable advance in the price of coal when defendant refused to deliver coal, and the second instruction would have required plaintiff to go into the market and make a contract at that time by which he would take all risks of subsequent lower prices and give the defendant the benefit in case there should be a subsequent advance. But the question whether that instruction was correct is not now involved and is not decided. One of defendant's witnesses testified that coal was scarce at that time and it might not have been possible for plaintiff to have made a new contract for future delivery, and under the evidence the question was one of fact. The last proposition of counsel is, that plaintiff was in default and the court should have directed a verdict for the defendant, as requested, for that reason. It is said that if we assume that any contract was made, the contract was for one-half of plaintiff's requirements in his business up to 2000 tons; that it was his duty to take one-half of the coal required in his business from day to day, but that he did not do so and for nearly three months bought practically all of his coal from other dealers, the quantity taken from defendant being less than 17 tons and that purchased from other dealers being 1467 tons. It is true that he took but little coal from the defendant up to October 1, when the price had advanced; but on the motion to direct a verdict the court was not only bound to assume that a contract was made, but also that it was the contract testified to by the plaintiff and not the one which defendant's witnesses said he offered to make. The contract which he testified to was not for one-half of his requirements, but for the specific amount of 2000 tons, which he could take at any time before January 1, 1896. If that was the contract there was no error in denying the motion. The judgment of the Appellate Court is affirmed. GEORGE E. Ross-LEWIN ย. PHILIP E. GOOLD, Admr. Opinion filed October 24, 1904. 1. BANKRUPTCY-presumption is in favor of validity of judgment of district court. The presumption is in favor of the validity of a judgment of the United States District Court in a bankruptcy proceeding, where want of jurisdiction does not appear on its face. 2. SAME when allegation of residence is sufficient after judgment. An allegation in a bankruptcy petition that "petitioner has had his principal place of residence for the greater part of six months next immediately preceding the filing of this petition, in Chicago, within said judicial district," etc., is sufficient to sustain the jurisdiction of the court in a collateral attack on the judgment. 3. APPEALS AND ERRORS-question cannot be first raised on appeal. Questions of law in a trial by agreement, without a jury, which are not raised in the trial court by the submission of propositions of law or otherwise presented to the trial court for decision, cannot be raised on appeal. APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. AXEL CHYTRAUS, Judge, presiding. VINCENT J. WALSII, for appellant. H. E. LUTHE, and AYERS, RINAKER & AYERS, for appellee. Mr. JUSTICE WILKIN delivered the opinion of the court: On December 7, 1900, appellant, George E. Ross-Lewin, began an attachment suit in the superior court of Cook county against John W. Knox. The attachment affidavit alleged that Knox was indebted to plaintiff in the sum of $25,556.72, which was the balance due upon a promissory note, and that the defendant, Knox, was a resident of the State of Colorado. To the declaration filed the defendant interposed three pleas of his discharge in bankruptcy. To these the plaintiff filed replications denying the discharge and denying that he had notice or knowledge of the bankruptcy proceedings. Before the case was tried Knox died, and appellee, his administrator, was substituted as defendant. Upon a hearing before the court, a jury being waived, the defendant offered in evidence the record of a proceeding in bankruptcy in the United States District Court for the Northern District of Illinois, showing the filing of a petition in voluntary bankruptcy by Knox and his subsequent discharge by order of that court, to the introduction of which the plaintiff objected, upon the grounds, first, that the record showed upon its face that the bankruptcy court did not have jurisdiction to entertain the petition and grant the discharge; and second, that the discharge was irrelevant because the record did not show that the indebtedness sued on was duly scheduled or that plaintiff had notice of the proceeding. The court overruled both objections. The plaintiff submitted three propositions of law: First, that the petition in bankruptcy offered in evidence "was not sufficient to give the court in which it was filed jurisdiction to adjudicate said Knox a bankrupt and to discharge him from his indebtedness to plaintiff;" second, that the bankruptcy proceedings "introduced in this case were void for want of jurisdiction in the court which purported to entertain them, and that said Knox was not, by said proceedings, discharged from the indebtedness to the plaintiff;" and third, that Knox "was not among the category of persons authorized by the bankruptcy law to be discharged in bankruptcy by the court which purported to discharge him, and that he was not, in said bankruptcy proceedings, discharged from his indebtedness to plaintiff.” The court marked each of these propositions refused and found the issues for the defendant. Motions by plaintiff for a new trial and in arrest of judgment being overruled, judgment was entered for the defendant. Plaintiff prayed and was allowed an appeal to the Appellate Court for the First District, and assigned for error the ruling of the trial court in admitting in evidence the record of the bankruptcy pro |
