Peerless Pattern Co. v. Silverbloom Dry Goods Co., 211 Ill. App. 194 (1918)

July 16, 1918 · Illinois Appellate Court

211 Ill. App. 194

Peerless Pattern Company, Appellant, v. Silverbloom Dry Goods Company, Appellee.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and error, § 432 ^* — when objection as to lack of verification of plea is too late. The objection that a plea is not verified must be raised in the trial court and may not be raised for the first time on appeal.

2. Pleading, § 453* — when verification of plea is waived. The verification of a plea is waived by going to trial upon the pleadings as framed.

3. Pleading, § 451* — how benefit of failure to file sworn plea may be availed of. If a plaintiff desired to avail itself of any benefit of the failure to file a sworn plea it should have moved for judgment or taken proper steps to have stricken the plea from the files.

Appeal from the County Court of Madison county; the Hon. Henry B. Eaton, Judge, presiding. Heard in this court at the March term, 1918.

Affirmed.

Opinion filed July 16, 1918.

Statement of the Case.

Action by Peerless Pattern Company, plaintiff, against Silverbloom Dry Goods Company, defendant, to recover a balance dne on a contract for the sale of patterns. From a judgment against it for costs, plaintiff appeals.

Newell & Brown, for appellant; M. J. Brown, of counsel.

R. Guy Kneedler, for appellee.

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

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

Mr. Justice McBride

delivered the opinion of the court.

4. Sales, § 147 ^* — when duty lies on purchaser to return unused goods within reasonable time after expiration of contract. Where patterns are delivered under a contract providing that patterns shall be shipped from time to time at a certain price each and that such as are unsold shall be returned and credit given at the full purchase price, and the term of the contract is for 5 years, and from term to term thereafter, with the option of cancellation within 30 days before expiration of any term, and it is provided that if notice is given the seller the agreement will be continued for 4 months thereafter in order to give the seller an opportunity to transfer the account, it is the duty of the purchaser to return the unused goods within a reasonable time after the expiration of the contract.

5. Sales, § 147* — what does not constitute unreasonable delay in returning goods after expiration of contract. A delay of 18 months, after the expiration of a contract for the purchase of patterns, in returning unused patterns to be credited on the purchase price, is not unreasonable where the contract contemplated that if notice to terminate the contract was given by the purchaser the agreement should continue for a certain number of months to give the seller an opportunity to transfer the account and the seller disregarded letters from the purchaser after the expiration of the 4 months’ period as to what should be done with the patterns and gave no direction as to their shipment.