— I. The note in suit was executed by the defendant to Gregg & Rankin, commission merchants in Chicago, Illinois, in settlement of an order made by defendant to plaintiffs to purchase for him 5,000 bushels of wheat for future delivery. The defendant contends that the contract of purchase'was illegal, that no actual sale nor delivery of the grain was intended by the parties, and that it was mere gambling upon the price of wheat in the future.

Evidence was introduced by both parties as to the nature of the transaction. Gregg, the plaintiff, testified that the firm of which he was a member bought for the defendant 5,000 bushels of wheat, that they paid for it, that it was delivered to them and held by them for him, and resold by them at a loss, and that the note in suit was given in settlement of such .loss. Upon this evidence the court below was justified in finding that the transaction was not an option deal or gambling contract. We cannot disturb such finding although it may seem to us to be against the weight of the evidence.

II. The note was made payable to Gregg & Rankin. ' The suit is brought by Gregg alone. ■ It is said there can be no recovery because the evidence does not show that Gregg is the owner of the note. But the petition avers that he is the owner, and the averment is not denied in the answer. The alleged ownership must, therefore, be deemed as admitted.

Affirmed.