#### Charles F. Lorenzen & Co., Defendant in Error, v. John W. Strackbein, Plaintiff in Error.

Gen. No. 14,748.

Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on review.

Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Jujlge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

Reversed and remanded.

Opinion filed December 21, 1909.

M. D. Dolan and F. M. Williams, for plaintiff in error.

A. M. Schwarz and Charles Herman, for defendant in error.

Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This suit is for a balance of $143 for tile furnished Strackbein, the defendant, for bath rooms, hall, floors and for mantels and hearths in a building he was having put up. The defense is that part of the tile furnished, which was to be used in connection with six mantels and hearths, was to be tile of the Rookwood Pottery Company according to certain samples, and that the tile furnished for the mantels and hearths was much below the samples in quality and appearance, whereby defendant was damaged to a much greater extent than the unpaid balance of $143. The samples by which defendant contracted and also samples of the tile furnished have been brought before this court. The parol evidence preponderates in favor of defendant. In addition the physical appearance of the exhibits demonstrates that the furnished tile was not of the quality of the samples. When one contracts for smooth tile he is not obliged to pay for rough and pitted tile furnished. There was no ac*170ceptance as defendant was away during the period the tile was furnished and did not return until it was practically all set. Upon his return he objected to the tile that had been furnished. The damages shown amount to more than the unpaid balance. Upon this record we are obliged to reverse the judgment of the Municipal Court and to remand the cause.

Reversed and remanded.