majority">Mr. Presiding Justice Baker

delivered the opinion of the court.

Under the stipulation the judgment is to be regarded as a judgment for the defendant, upon a verdict for the defendant, returned by the jury by direction of the court.

The question presented by the record is, whether there was testimony upon which, taken as true, the jury might properly have found a verdict for the plaintiff.

The evidence for the plaintiff tended to show that in May, 1903, plaintiff had two certificates of shares of stock in the Garden City Filter Company, a corporation, one for 211, the other for 60 shares; that she offered to sell 271 shares of the stock of said corporation to the defendant at the price of $11,000 cash; that defendant replied that he would take the stock but did not know whether he could pay all cash; that plaintiff then offered to take $5,000 cash and $6,000 in six months and defendant said: ' “Well, I will take it at that”; that plaintiff handed him said two stock certificates and he took them, held them a short time and then said, that he did not have his check book with him and that plaintiff had better take the certificates and come back in three or four days and he would then pay her for them; that plaintiff went back to the defendant - in the course of three or four days and he then told her that he was not yet prepared to take the . stock but would be ready to do so in a week or ten days; that plaintiff repeatedly within a short time after-wards tendered said certificates to the defendant and was told by him that he was not yet prepared to take and pay for the shares. Said certificates with a proper endorsement to make transfers on the books of the company were produced in court and tendered to .the defendant.

That this testimony tended to prove that a contract was entered into between the plaintiff and defendant in relation to the purchase and sale of said shares is not disputed. The contention of defendant in error is that plaintiff’s testimony tended to establish, not a completed sale of said shares by plaintiff to defendant, but only a contract on her part to sell and on his part to buy the same; that under the contract her testimony tended to prove the title to the shares did not pass and the plaintiff could not therefore recover the purchase price either under the common counts or under the special count.

We think the testimony of the plaintiff tends to show a bargain and sale, a completed sale of the shares; that taking her testimony as true, she had the right to treat the shares as the property of the defendant and did so treat them by repeatedly tendering to him certificates for the number of shares so sold to him and by tendering them to him upon the trial. This under the rule of our Supreme Court stated in Osgood v. Skinner, 211 Ill., 229, gave to the plaintiff the right to recover the purchase price either under the special count or under the common count for goods bargained and sold.

It follows from what has been said that in our opinion the trial court erred in rendering, under the stipulation, a judgment for the defendant as upon a directed verdict in his favor. It is insisted on behalf of the defendant in error that, irrespective of any question of law involved, the judgment should be affirmed on the facts, on the ground that under the evidence the plaintiff was not entitled to a verdict, but the verdict should have been for the defendant, and that as a basis for such judgment of affirmance upon the facts, this court ought to find, as a fact, from the evidence in the record, “that defendant did not enter into any contract for the purchase of plaintiff’s 271 shares of stock in the Garden City Filter Company.” Counsel on both sides have in their briefs reviewed the evidence and discussed the credibility of the witnesses.

Into questions of fact we cannot upon this record enter. A motion to direct a verdict for the defendant raises only a question of law, viz.: whether there is evidence before the jury from which, taken as true, the jury may properly find a verdict for the plaintiff. Upon review of a judgment upon a directed verdict for the defendant the question presented is, whether the trial court erred in directing a verdict for the defendant, and this raises only the same question of law that was decided adversely to the defendant by the trial court in directing a verdict. This court is not under the statute authorized to treat the question of law thus raised and passed upon by the trial court as one of fact. Treat v. Merchants Life Assn., 198 Ill., 431. It is only where the judgment of the trial court involves and is based upon a finding of facts, by the court, or by a jury, and this court finds the facts in whole or in part different from the finding of the trial court, that this court is authorized to make a finding of facts and make a final determination of the cause based on such finding of facts. The judgment in this case is not based upon any finding of fact by the trial court, but upon the decision of that court, as a question of law, that there was no evidence upon which the jury could properly find a verdict for the plaintiff.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.

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