nicipal court, made and entered of record a finding of facts as a part of its judgment, and rendered a judgment against the plaintiff for $3210.28. A writ of certiorari for the purpose of reviewing the judgment of the Appellate Court was awarded, and it is assigned for error that the Appellate Court erred in reversing the judgment of the municipal court and that the finding of facts is insufficient to sustain the judgment.

Whenever the Appellate Court reverses a judgment without remanding the cause for a new trial and enters final judgment, if the judgment is the result, wholly or in part, of finding the facts concerning the matter in controversy different from the finding of the trial court, the statute requires the Appellate Court to recite in its finding, order, judgment or decree the facts as found, and the facts as so found and incorporated in the judgment are conclusive in this court on appeal or error. If there is any material fact in controversy concerning which there is no finding, it will be presumed that the Appellate Court found the facts the same as the trial court. (Hayes v. Massachusetts Mutual Life Ins. Co. 125 Ill. 626; Coverdale v. Royal Arcanum, 193 id. 91; Sellers v. Thomas, 185 id. 384.) To sustain its judgment the Appellate Court must make a finding of fact concerning every material issue upon which the rights of the parties depend. Commercial Ins. Co. v. Scammon, 123 Ill. 601; Neer v. Illinois Central Railroad Co. 138 id. 29; Hawk v. Chicago, Burlington and Northern Railroad Co. id. 37; Morris v. Wibaux, 159 id. 627.

Looking to the pleadings to see what issues were formed thereby and to the bill of exceptions to ascertain what facts were controverted at the trial, we find the following: The plaintiff filed as his claim the common counts, with a bill of particulars of three loans made by him to the defendants: one for $1891.95, made on January 18, 1905; another for $1125.81, made on October 30, 1905;

one of

and another for $1000, made on May 21, 1907. His claim was for the amount of the said loans, with interest. The defendants filed a claim of set-off of two items: $2046.82 agreed to be paid by a contract of May 6, 1905, with interest from that date, and the other of $1251.35, agreed to be paid by a contract of October 31, 1905, with interest from April 31, 1906. The defendants gave credit to the plaintiff for the item of $1000 mentioned in the bill of particulars as loaned on May 21, 1907, with interest thereon. The plaintiff filed an affidavit of merits to the claim of set-off, in which he did not dispute the item of $2046.82, which he agreed to pay by the contract of May 6, 1905, but alleged that he was entitled to a credit of $1891.95, mentioned in his bill of particulars as a payment upon the same. The affidavit alleged that the defendants did not perform their contract of October 31, 1905, in which he agreed to pay them $1251.35, and that he did not waive any of the covenants or conditions of the agreement, so that they were not entitled to set off that sum of money. The issues formed by the pleadings were whether the $1891.95 loaned to the defendants on January 18, 1905, should be credited as a payment on the contract of May 6, 1905, and whether the defendants had performed their contract of October 31, 1905, or performance had been waived by plaintiff, so that he was bound to pay the $1251.35 stipulated in that contract, with the interest.

At the trial there was no dispute of the fact that the loans were made by the plaintiff as stated in the bill of particulars, and there was no controversy respecting the agreement of the plaintiff to pay the defendants $2046.82, as stated in the claim of set-off. The plaintiff proved the contract dated May 6, 1905, by which he agreed to pay the defendants the said sum of $2046.82, with interest at five per cent, and they agreed to assign to him a contract, known as No. 530, which they held with the North Wis

consin Lumber Company for 1023.41 acres of land. The plaintiff admitted that he had received title to the lands and that the contract had been performed. The controversy relating to that contract was whether the $1891.95 which the plaintiff had loaned to the defendants on January 18, 1905, was to be treated as a payment on the said sum of $2046.82. The contract of January 18, 1905, was also offered in evidence by the plaintiff, and it recited that he had loaned to the defendants $1891.95 to make a payment on the contract held by defendants with the North Wisconsin Lumber Company for the purchase of the lands and taxes due on the lands. By that agreement the contract of purchase was assigned to the plaintiff as security for the loan and for any further advances he might make, with interest, and it contained an option to the plaintiff to pay future payments and $2046.82 and release his claim for the money loaned and take title to the land. The contract of May 6, 1905, contained nothing relating to the loan of the money or the release of the plaintiff's claim for it and was on its face an entirely independent contract, by which the plaintiff was to have the land for the sum of $2046.82, which he promised to pay the defendants, and the assumption of deferred payments to the vendor. The defendants offered testimony tending to prove an oral understanding at the time the contract of May 6, 1905, was executed, that it was intended as an exercise of the option mentioned in the previous contract and that he was to treat the loan as paid. The court struck out this testimony because it was an attempt to change the written contract, but afterward admitted it, to be considered for what it was worth but not for the purpose of in any way changing the contract of May 6, 1905. The plaintiff disputed the making of any oral agreement or the existence of any understanding that the loan was released or the contract of May 6, 1905, in any way affected by any oral agreement. There was a controversy about the $1251.35 which the plaintiff

agreed to pay by the contract of October 31, 1905, and the defendants offered in evidence that contract to sustain their claim of set-off. By it the defendants agreed to assign the contract held by them, known as No. 527, with the North Wisconsin Lumber Company for the purchase of different lands from those described in the other contracts, and agreed to procure the consent of the North Wisconsin Lumber Company to the transfer, and the confirmation by another corporation and its shareholders, by deed in due form, of such transfer. The plaintiff on his part agreed to pay $1251.35 on or before six months from the date. of the contract, with interest after maturity. The consent of the North Wisconsin Lumber Company to the assignment of the contract was not obtained, and the defendants claimed that the plaintiff waived that condition of the contract and agreed to attend to that matter himself. The plaintiff denied that any such agreement was made or that he had waived any condition of the contract. The loan of $1000 to the defendants was credited in the set-off, and, of course, was not in dispute. Concerning the loan of $1125.81, the plaintiff testified that Charles H. Norton applied to him for the loan; that they were negotiating for the contract of October 31, 1905, and he let him have the money, with the agreement that it was a loan in case the contract was not consummated, or upon account of the contract if it was consummated later. The attorney for defendants testified that they were negotiating about the contract, and the check for the money was given to him on the day the contract of October 31, 1905, was made.

The court made a finding of facts that the $1891.95 was a loan; that the defendants had failed to prove payment; that the plaintiff advanced $1125.81 on the contract of October 31, 1905; that said contract was not fulfilled by the defendants; that the loan of $1000 was to apply on that contract if it was ever completed; that the plaintiff was entitled to interest on the $1891.95, amounting to

$717, but was not entitled to interest on the other sums, making a total of $4735.12. As against this amount the court found the defendants were entitled to a credit of $2046.82 named in the contract of May 6, 1905, with interest, making a total of $2839.92 and leaving a balance of $1895.20 due plaintiff, for which judgment was rendered.

The finding of facts by the Appellate Court was as follows: "That by a contract entered into on May 6, 1905, the appellee, Henry D. Laughlin, agreed to pay appellants $2046.82, and that said Laughlin has failed to make such payment; that said Laughlin, by a contract entered into on October 31, 1905, agreed to pay appellants the further sum of $1251.35 upon the performance by appellants of said last mentioned contract, and that the appellants performed and carried out said contract of October 31, 1905, except in the matter of the procurement of the consent of the North Wisconsin Lumber Company to the assignment thereof to said Laughlin; that the procurement of the consent of said lumber company by appellants was waived by said Laughlin, who agreed to pay said sum of $1251.35 to appellants; that the total amount of said sums so agreed to be paid by said Laughlin to said appellants, with legal interest, amounts to $4487.36; that said Laughlin paid appellants the sum of $1000 on May 21, 1907, on the contract of October 31, 1905, and that said payment, with legal interest thereon, amounting to $1277.08, should be credited to said Laughlin on said sum of $4487.36, which leaves a balance of $3210.28 due from said Laughlin to appellants."

The Appellate Court did not find differently from the trial court in respect to the debt of $2046.82 or the loans of $1891.95, $1125.81 and $1000, and could not have done so, as they were not in dispute by the pleadings or on the trial. Elphicke & Co. 200 Ill. 411.) at the trial concerning the fact that the plaintiff was to

between the parties either (Iroquois Furnace Co. v. There was no disagreement