delivered the opinion of the court:
Appellee brought this suit in assumpsit against appellants, partners, doing business under the firm name of Lord & Thomas. There were two special counts, in which a written contract was set out, wherein appellants agreed, in consideration of §25,000, to use their influence to establish certain industries in the city of Wichita, which they represented they had power to control and which they were about to establish in the city of Hutchinson, Kansas, and to induce capitalists to invest in real estate in said city of Wichita, and also agreed to sell real estate to be donated for the purpose, the proceeds of which were to be used to boom said city of Wichita. It was alleged that appellee paid to appellants §10,000 under the contract; that they failed to perform their agreements. The declaration contained also the common counts, among which were counts for money had and received by appellants for the use of appellee, and for interest. A jury was waived and the cause was submitted to the court for trial, resulting in a finding and judgment for appellee for §13,326.39. That judgment has been affirmed by the Appellate Court.
The arguments in this case are devoted almost exclusively to questions of fact,.such as whether defendants used their best efforts and influence to boom the city of Wichita, whether there was any rescission of the contract, and whether there was evidence which would justify a recovery for money had and received.
The position of appellants, as stated by counsel, is as follows: “Appellants did not claim in the c'ourt below, and do not claim now, that the allegations of either the special counts or the common counts of the declaration are defective, or insufficient to support a judgment based upon competent evidence of such allegations. There was no question of variance between proof and pleading to be raised in the court below,- nor do we raise any such question now. We concede that all the evidence in the record was properly admitted under some count in the declaration. We do say, however, that there was no evidence admitted that supports the judgment, or proves or tends to prove all the essential elements of any ground of recovery known to the law.” The question so stated by counsel was not raised in the trial court as a question of law, and it cannot be said that the court whose judgment is being reviewed has committed an error upon a question not raised in that court and on which'it has made no ruling. If the trial court is not asked to make, and does not make, a ruling upon the question whether the evidence proves or tends to prove plaintiff’s cause of action, this court cannot pass upon it. (Cothran v. Ellis, 125 Ill. 496.) We must therefore decline to enter upon a consideration of the arguments upon those questions.
It is urged that the damages allowed were excessive, and it is said that the court included §3326.39 as interest. The grounds upon which damages are recoverable and the basis upon which they are to be estimated are questions of law, and if there has been an erroneous holding of a trial court upon such a question it may be reviewed by this court, but otherwise the question is one of fact. No question of law as to the amount of damages was preserved in any way in this case, and the conclusion of the Appellate Court must be regarded as final. Illinois Central Railroad Co. v. Frelka, 110 Ill. 498; Jones v. Fisher, 116 id. 68.
Complaint is made of the action of the court in modifying appellants’ propositions of law numbered 1 and 3. The principles of law contained in these propositions were held cby the court to be correct, but the court struck out of each a statement that the proposition was applicable to the facts of this case. Defendants had a right to deal with the facts claimed by them as hypothetical and state a rule of law as applicable to such condition of facts, the same as in an instruction; but the proposition should present a rule of law only, and in no case assume the existence of facts in dispute. The statement that these rules were applicable to the facts of the case was equivalent to a finding of the condition of facts stated in the proposition, and it was not error for the court to strike out that statement.
We have considered all questions presented for our consideration which we are at liberty to investigate, and finding no error in respect to them the judgment of the Appellate Court will be affirmed.
Judgment affirmed.