delivered the opinion of the Court:
The only errors assigned on this record are:
“First. Because the said court erred in affirming the judgment of the circuit court of Cook county in finding the issues for the defendant below.
“Second. Because the court erred in not finding whether there was or was not a preponderance of evidence showing that Lincoln had notice before and at the time the dealings for Foote were carried on upon the board of trade, of the original contract made between said Hooker and Foote.
“Third. Because the court erred in assuming, when passing upon the evidence concerning notice to Lincoln of the original contract made by Hooker and Foote, that the burden of proof rested upon the appellants to show that there was no such notice, and that the burden of proof was not upon Foote to prove said notice.”
1st. Since this is neither a criminal case nor one in which the revenue, a franchise or freehold, or the validity of a statute is involved, the first assignment of error is not allowable. It relates, as will be observed, purely to the question of fact arising upon the issues. Ho question of law is thereby presented. The language of sec. 90 of the act to amend an act entitled “An act in regard to practice in courts of record,” etc., approved June 2, 1877, leaves no room for controversy in this regard. It is: “ The Supreme Court shall re-examine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or appellate courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section/’—that is to say, excepting in cases involving the revenue, (as the statute is now amended), and cases involving a franchise, a freehold or the validity of a statute. Laws of 1877, p. 153. Also Laws of 1879, p. 222, sec. 88.
So we have held, when the Appellate Court finds that the evidence sustains the verdict of the jury, such finding as to the facts is conclusive upon this court, and only questions of law can be considered. The City of Aurora v. Pennington, 92 Ill. 564. And where the issues of fact were referred to the court without the intervention of a jury, as in the present case, and the Appellate Court affirmed the judgment of the circuit court, we held it was the right and duty of the Appellate Court to determine whether the evidence warranted the conclusion reached by the, circuit court upon the question of fact upon which the case turned, and that we must conclusively presume that the Appellate Court did its duty in that regard, and that the conclusion reached by it is the correct one. Carr v. Miner, 92 Ill. 604. See, also, to same effect, Hayward v. Merrill, 94 Ill. 349, and Hewitt v. The Board of Education, etc., id. 528.
2d. There seem to be two satisfactory answers to the second error assigned. First, the issues made by the pleadings present no question of law in this regard, and no question of law arose by reason of the admission or exclusion of evidence during the trial upon which this question can be predicated. The second plea presented the defence that “ the promises in the declaration mentioned were upon the consideration of money won by Stephen G. Hooker and George D. Lincoln, under the firm name and style of S. G. Hooker & Co., from the defendant, by gaming, to-wit: by buying and selling for defendant on the board of trade deals and options in grain, wheat, lard and pork, which options and deals were to be settled upon differences alone.” And the third plea presented the same defence substantially, but worded thus: “That the consideration of the promises was money won by Hooker and Lincoln from the defendant by gaming, to-wit: dealing in options for grain and other commodities, on the board of trade, upon differences alone, wherein neither party had nor was to deliver or receive any such article bought or sold, of which plaintiff had notice.”
Both pleas assume that the money was won, etc., by Lincoln and Hooker, and no question is made but that the act charged is the act of both. Whether, in fact, this was so, depended upon the proof. The finding of the circuit court was, that the defence was sustained by the proof, and the Appellate Court affirms this finding of fact.
The certificate purporting to be the findings of the Appellate Court, signed by two judges of that court, can not be regarded. Ho statute requires or authorizes such a certificate in cases like the present, and we can therefore base no judicial action upon it.
By section 87 of the amendment of the Practice act, adopted June 2, 1877, before quoted from, (Laws of 1877, p. 153,) it is provided: “ If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as foqnd; and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.” This, it will be observed, applies only to cases where the judgment of the Appellate Court is the result, wholly or in part, of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error,—and the facts found then, must be recited in the final order, judgment or decree of the court, and not merely embodied in a certificate of two judges thereof.
2d. But assuming that we are bound to act upon the facts certified as the only facts to uphold the judgment,—in the first place, it may be said the finding of the court on the question of notice to Lincoln is sufficient. What evidence was before the circuit court on that point, we can not know, except from this certificate. It assumes there was sufficient to authorize that court to find as it did—that is to say, it shows the judges are unable to find there was such a preponderance that Lincoln did not have sufficient notice as would warrant the court in reversing the judgment on that account. The judgment is presumed to be sustained by the evidence until the contrary is made to appear, and the contrary is not here made to' appear.
In the second place, accept the finding, as we must for this question, to be true that Hooker generally directed the trading on the board of trade, and that all the trading for appellee was done by the firm of S. G. Hooker & Co., and the inference is conclusive that the contract made by Hooker with appellee was in the course of the partnership business—that is, it was in the general line of the firm business of trading for a commission on the board of trade. Ho legitimate partnership contemplates, as a part of its business, the commission of frauds or of acts prohibited by law; yet, when a partner, in the course of the partnership business, commits a fraud or does acts prohibited by law, the firm is liable, although the other partners have no knowledge of such frauds or illegal acts. Wolf et al. v. Mills, 56 Ill. 360; Loomis et al. v. Barker, 69 id. 360; Schwabacker et al. v. Riddle, 84 id. 517; Durant v. Rogers, 87 id. 508; Castle et al. v. Bullard, 23 Howard (U. S.) 172.
So, here, in our opinion, the inquiry Avhether Lincoln had notice of the agreement between Hooker and Foote is totally immaterial. It was a partnership undertaking, and is the foundation of all the subsequent dealings between Foote on' the one side and S. G. Hooker & Co. on the other. If it was forbidden by the letter or the policy of the law, necessarily all dealings predicated upon it are within legal condemnation.
3d. What has been said in regard to the second error, necessarily disposes of the third error assigned.
Assuming that we ■ are right in our preceding positions, it is not a pertinent inquiry where the burden of proof rested in regard to notice to Lincoln of the terms of the contract made by Hooker with Foote.
We may add, in conclusion, we see no objection to the law as announced in the opinion adopted by the Appellate Court, and written by the circuit judge, who was formerly a distinguished member of this court. Tenney v. Foote, 4 Bradwell, 594. Like doctrine, on the principal question, will be found in Pickering et al. v. Cease, 79 Ill. 328.
We held in Henderson v. Palmer, 71 Ill. 582, where part of an entire consideration for a promise is illegal, the whole contract is void.
The judgment is affirmed.
Judgment affirmed.
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