Schrayer v. C. Doering & Son, 211 Ill. App. 284 (1918)

May 14, 1918 · Illinois Appellate Court · Gen. No. 23,591

211 Ill. App. 284

Robert Schrayer, trading as M. Schrayer’s Sons & Company, Appellee, v. C. Doering & Son, Appellant.

Gen. No. 23,591.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Reversed and remanded.

Opinion filed May 14, 1918.

Statement of the Case.

Action by Robert Schrayer, trading as M. Schrayer’s Sons & Company, plaintiff, against C. Doering & Son, a corporation, defendant, to recover for goods, wares and merchandise. Prom a judgment for $250.23 entered by default after defendant’s affidavit of defense had been stricken from the files, defendant appeals.

Baker & Holder, for appellant.

David Jetzinger, for appellee.

Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Coubt of Chicago, § 13* — when error to strilce affidavit of defense from files. If an affidavit of defense sets forth a legal defense to any part of plaintiff’s claim, it is error to strike the affidavit from the files.

2. Municipal Coubt of Chicago, § 13* — when affidavit of defense is sufficient. In an action in the Municipal Court of Chicago to recover for goods, wares and merchandise under a written contract, an affidavit of defense states a good defense where it states that certain items in plaintiff’s statement of claim were samples furnished gratis to defendant and that owing to an advance in price of the merchandise plaintiff failed to make delivery as agreed upon in the contract, and that by reason of the breach of the contract defendant was obliged to purchase merchandise elsewhere at an increased price; that by reason thereof defendant sustained damages in excess of plaintiff’s claim for merchandise delivered, and that at the times when payment became due for merchandise delivered defendant offered to set off against the amounts due plaintiff damages due to plaintiff’s nondelivery of merchandise.