#### W. Rosenberg, Defendant in Error, v. C. Miller, Plaintiff in Error.

Gen. No. 17,697.

1. Sales—evidence of acceptance. Where plaintiff undertakes to make a suit for defendant at an agreed price and after the suit is delivered defendant returns the coat which the evidence shows is not properly made, the fact that she did not return the skirt until later does not justify the conclusion " that she accepted the suit.

2. Appeals and errors—where ■evidence sustains judgment. In an action to recover the contract price for making a suit, where the evidence shows that the suit does not fit and that plaintiff refused to "fit the suit in accordance with the contract after defendant returned it, a judgment for defendant is affirmed.

Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1911.

Reversed with a finding of fact.

Opinion filed June 24, 1913.

Harry R. Hurlbut and Samuel B. Bang, for plaintiff in error.

Fowler, McDonnell, Rosenberg and MacPhail, for defendant in error..

Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment in favor of the defendant in error, W. Rosenberg, in an action brought by him against the plaintiff *444in error for goods, wares and merchandise, sold, delivered'and made for the plaintiff in error.

The only testimony offered in the case was that of plaintiff in error, who was called for examination under section 33 of the Municipal Court Act. The evidence in the case discloses that the defendant in error, Rosenberg, undertook to furnish a suit for the plaintiff in error at an agreed price of $55, and after many fittings- delivered the suit to the plaintiff in error at her house. The plaintiff in error returned the coat on the following day claiming that it did not fit her and that the goods were not made according to the contract. The evidence shows that the coat was not properly made and that the plaintiff in error declined to accept it. The mere fact that she did not return the skirt, as to which no complaint was made, does not justify the conclusion that she accepted the suit. Defendant in error refused to fit the suit in accordance with the contract and brought the action in question to recover the agreed price of the suit. Thereupon plaintiff in error returned the skirt. The evidence fails to show that the defendant in error performed his contract. The judgment is reversed with a finding of fact.

Reversed with a finding of fact.