¶1delivered the opinion of the Court: This is an action of assumpsit, brought by appellees against appellant, the declaration containing the common «counts only, and the following written contract was attached to the declaration, with notice, as follows:
“Chicago, 6-28, 1888.
“We, the undersigned, agree to furnish Messrs. W. F. McLaughlin & Co. five million coffee wrappers, to be of same paper exactly as sample attached, and marked (A). Printing to be same as sample attached, signed and marked {B). Colors of printing and color work to be exactly •same as sample attached, signed and marked (C). For .said wrappers W. F. McLaughlin & Co. to pay at the rate •one dollar ninety-five cents ($1.95) per M., f. o. b. Chicago. First car to be delivered in Chicago October 1st, .1888, and one car the first of each month thereafter until ^contract is completed. Sample lot of 500,000 to be shipped as soon as convenient. This order is contingent on above sample lot being satisfactory to McLaughlin & Co. as regards conditions of contract for large lot.
“Hinds, Ketciiam & Co.”
“Accepted, W. F. McLaughlin & Co.
“Geo.”
¶2“The plaintiffs’ claim, under the foregoing declaration, is for a balance of $3,113.55, with interest thereon from March 12, 1889, due under the contract of which the foregoing is a copy, for coffee wrappers delivered under such contract.”
¶3The questions presented on the trial in the Circuit Court of Cook county were whether the plaintiffs—appellees— ¡had complied with their contract on their part, and shipped the last carload containing 1,500,000 wrappers of the paper, printing, colors and color work, in accordance with the contract. The contention on the part of the defendant, the appellant here, was that that was not done. The judgment of the Circuit Court was for plaintiffs, the appellees here, for the sum of $3,662.70. That judgment was affirmed by the Appellate Court for the First District, and the questions of fact are settled by those adjudications.
¶4The first question of law presented by this appeal is that a recovery could not be had under the declaration in this case on the facts presented by this record. We do not feel ■called upon to discuss the sufficiency of the declaration. On a careful examination of the record, it does not appear that any objection on that ground was made to the introduction of evidence, and no motion to exclude was made, on the contrary, from the record the case was tried on the theory that the declaration was sufficient. It does not appear that that question was raised in the Appellate Court. There is neither objection and exception or motion in the record on which that question can be raised here. Neither •can it be raised for the first time in this court. It is also insisted by appellant that the judgments of the Appellate and Circuit Courts should be reversed, because interest was allowed on an open account, which could not be done unless payment thereof has been unreasonably and vexatiously delayed. That question, like that as to whether the contract was performed on the part of appellees, was a question of fact, which we are, by the statute, precluded from determining.
¶5The instructions to the jury, given by the court, made a correct application of the law, and there was not error in the refusal or modification of instructions, neither was there error in the rulings of the court in the admission or exclusion of evidence. Appellant assigned, among other causes why the motion for new trial should have been allowed, that some of the jurors were guilty of improper •conduct and were improperly tampered with, and numerous affidavits were filed on the part of appellant as well as counter-affidavits on the part of appellees on this question. It appears the jury retired in charge of an officer to consider of their verdict but a short time before the hour for adjournment for the day, and were instructed to render a .sealed verdict. After the court adjourned a sealed verdict was returned and delivered to the officer or clerk, and the jury were to return the next morning. After the jury were discharged for the day, and on the same evening, as they were leaving the court-house, as a result of some remark from one of the jurors to one Ludden, an attorney who represented plaintiffs, he, Ludden, invited those present, being most of the jurors, to have a cigar, and entered a saloon near, and there found one Moore, one of the attorneys who represented the defendant. Ludden, with several of the men Avho were on the jury, went to an adjoining room, where they were joined by Moore, and both Ludden and Moore treated several times to cigars and intoxicants, and there engaged in telling anecdotes, etc., the chief burden of paying the bills falling on Ludden. No motion or suggestion was made the next morning in open court as a suggestion or motion in the case, but an effort seems to have been made by Moore to make a confidential communication to the judge, to which the judge replied: “I do not care to hear confidential communications.’ ’ The verdict was announced, and the attention of the court first called to the matter by the motion and affidavits. No condemnation allowed by law for such impropriety could be too severely visited on Ludden, Moore, and those members of the jury who were guilty of the improper conduct. Nor Avould we hesitate to set the verdict aside if Ludden alone had been the offending party with the jury, but from a careful reading of the affidavits it would seem that Moore’s position is not superior to Ludden’s. Whilst condemning the action of both Ludden and Moore, we are, with all the facts appearing, not disposed to give either side any benefit or advantage because of the improper action of the other. The other question raised as to the improper actions of the jury when in the jury-box, should have been called to the attention of the trial court. It is not of that character for which Ave are disposed to disturb this verdict. The judgment is affirmed.
¶6Judgment affirmed.