Smith v. Lord & Bushnell Co.

199 Ill. App. 582

• Court: Appellate Court of Illinois
• Decided: June 19, 1916
• Docket: Gen. No. 22,185
• Status: Published

Opinion

Mr. Justice Holdom

delivered the opinion of the court.

3. Sales, § 126*—what does not constitute delivery of lumber. An order given by the seller of lumber to a person with whom the seller’s lumber is stored to deliver to a purchaser a specified quantity upon the purchaser’s orders does not operate to transfer the title to such lumber to the purchaser, nor does it constitute a symbolical delivery thereof. 4. Municipal Coubt of Chicago, § 13*—when defendant may not prove matter not set up in affidavit of defense. Under rule 19 of the Municipal Court providing that “every allegation of fact in any statement of claim or of counterclaim or set-off, if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken to be admitted,” the defendant in an action by the purchaser of lumber against the seller to recover damages for the failure to deliver a portion of the lumber paid for who limits his defense to the claim of delivery to plaintiff of the entire amount of lumber contracted to be sold may not prove that the market value or the grade and quality of the lumber in controversy were different from those appearing in plaintiff’s statement of claim, as such matter should - have been set up in the affidavit of defense.