#### The Wisconsin Lime & Cement Company, Appellee, v. Herman C. Lelivet, Appellant.

Gen. No. 17,881.

(Not to be reported in full.)

Abstract of the Decision.

1. Bills and notes, § 39 * —when acceptance is necessary. TJnr.ar Negotiable Instruments Act, §§ 125, 131, J. & A., |f 7765, 7771, *437no recovery can be had upon a written order of a subcontractor on a contractor directing him to pay a specified sum of money to a material man when such order, or bill of exchange, is not accepted by the contractor. 0 • •

*436Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

Affirmed.

Opinion filed October 15, 1913.

Statement of the Case.

Action "by the Wisconsin Lime & Cement Company against Herman C. Lelivet on contract. From a judgment for plaintiff for one hundred and seventy-five dollars, defendant appeals.

F. W. Balcome, for appellant.

Rice & O’Neil, for appellee.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XXV, same topic and section number.

Mr. Justice Baume

delivered the "opinion of the court.

*4372. Novation, § 1 * —what constitutes. . A novation exists where' a contractor refuses to pay an order drawn upon him by a subcontractor in favor of a material man, but -subsequently pays half of the claim of the material man in consideration of a waiver of lien and agrees to pay the balance of the claim at ax certain time.