#### F. W. Norwood and T. Y. Hamilton, trading as Lumber Shippers Storage & Commission Company, Defendants in Error, v. Maremont, Wolfson & Cohen Company, Plaintiff in Error.

Gen. No. 18,341.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed on remittitur.

Opinion filed October 9, 1913.

Statement of the Case.

Action by F. W. Norwood and T. Y. Hamilton, doing business under the firm name of Lumber Shippers Storage & Commission Co., against Maremont, Wolf-son & Cohen Company, a corporation, to recover for lumber sold and delivered to defendant. From a judgment for plaintiffs of two hundred seventy-eight dollars and eighty-one cents, defendant brings error.

Edward R. Litzinger, for plaintiff in error.

Fred H. Atwood, Frank B. Pease and Charles O. Louoks, for defendants in error; Burrell J. Cramer, of counsel.

*

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

Mr. Justice Fitch

delivered the opinion of the court.

*79Abstract of the Decision.

1. Sales, § 146 * —remedy of buyer when goods of different quality than ordered. When the goods delivered are of a different quality of description than ordered, the buyer’s remedy, in the absence of a warranty, is to refuse to accept the goods when delivered or to return them within a reasonable time.

2. Sales, § 155*—when buyer waives right to object to the quality of goods delivered. Buyer waives right to assert that goods were of a different quality than ordered where he does not refuse to accept them when delivered or does not return them within a reasonable time; but the rule does not apply to bind the buyer either as to the quantity or the price.

3. Sales, § 155*—when objection to quality of goods delivered, no defense to action for price. Buyer accepting goods and appropriating them to his own use cannot defeat action for purchase price because the goods are not of the quality or description ordered.

4. Sales, § 325*—burden of proof. In action for price of lumber sold and delivered, plaintiff has burden of proving the quantity delivered and also the price agreed to be paid or its market value.

5. Appeal and error, § 1585*—when error may be cured by remittitur. On writ of error from a judgment for $278.81, an error in overruling a motion for a new trial may be cured by a remittitur of $93.96 where the record shows an admission of plaintiff in error that defendant in error is entitled to $184.85.