Architectural Tile Co. v. Spiro, 207 Ill. App. 167 (1917)

July 2, 1917 · Illinois Appellate Court · Gen. No. 23,064

207 Ill. App. 167

Architectural Tile Company, Appellee, v. Israel S. Spiro, Appellant.

Gen. No. 23,064.

(Not to he reported in full.)

Abstract of the Decision.

1. Municipal Court of Chicago, § 13 ^* — when statement of claim in action to recover for goods sold and delivered is insufficient. A statement of claim, in an action to recover for goods sold and delivered, which contains a number of items, but no description whatever as to the kind and character of the goods, the items charged being “to invoice,” is insufficient, and a motion for a more specific statement of claim is improperly denied.

2. Sales, § 323* — when portion of affidavit of merits in action to recover for goods sold is improperly stricken from files. In an action to recover for goods sold and delivered, held that the portion of an affidavit of merits alleging that there were errors in the account stated by the plaintiff and that it included the price of certain tile which defendant claimed was to be of a specific kind, but after the tile was delivered under the contract and set up it developed that it was not of the kind and character as specified in the contract, and that it was impossible to discover this from inspection before setting,' was improperly stricken from the files.

Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1917.

Reversed and remanded.

Opinion filed July 2, 1917.

Statement of the Case.

Action by the Architectural Tile Company, a. corporation, plaintiff, against Israel S. Spiro, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for $240.79, defendant appeals,

Harold J. Finder, for appellant.

W. J. Leseman, for appellee.

* See Illinois Notes Bisrest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section titimber.

Mr. Justice McSurely

delivered the opinion of the court.

3. Sales, § 310 ^* — what is condition precedent to right to recover purchase price of goods sold by description. Where a contract is executory and the seller agrees to sell an article by a particular description, it is a condition to his right to recover the price that the thing which is delivered shall answer such description, and in a suit for the price brought by the seller, the defendant may give in evidence the diminution in value on account of the goods not answering the description, or, if they he in fact worthless, may defeat the action.