#### Delos Hull & Company, Defendant in Error, v. F. E. Pray et al., Plaintiffs in Error.

Gen. No. 17,537.

Account stated—when defense of, not established. In an action for goods sold and delivered, a defense of account stated held not established.

*374Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

Affirmed.

Opinion filed November 12, 1912.

Edward D. Pray, for plaintiffs in error.

Cameron & Matson, for defendant in error.

Mr. Justice F. A. Smith

delivered the opinion of the court.

Delos Hull & Co., defendant in error, brought suit against P. E. Pray & Sons, plaintiffs in error, in the Municipal Court of Chicago. The claim of the plaintiff was for $64.79 for seven items of coal sold and delivered in September, October and November, 1907. No question was made as to the sale and delivery of the coal. Nor was there any claim that the coal was paid for. The plaintiffs in error claim that an account was stated between the parties which prevents the plaintiffs in error from recovering for the coal. On the trial the jury found the issues for the defendant in error, and assessed the damages at $64.79; and in response to the following interrogatory, “shortly after the accrual of plaintiff’s present claims against the defendants did the parties to this suit state the account between them?” answered, “No.”

The argument of plaintiffs in error is directed to the proposition that the verdict and special finding of the jury is against the law and the weight of the evidence. Upon a consideration of the evidence we do not find that the verdict is against the clear preponderance of the evidence.

The judgment is affirmed.

Affirmed.