#### George M. Watts, Defendant in Error, v. Frank O. Balch, Plaintiff in Error.

Gen. No. 18,496.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. James C. Mabtdst, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

Reversed and remanded.

Opinion filed October 14, 1913.

Statement of the Case.

Action by George M. Watts against Frank O. Balch to recover a balance claimed to be due on a contract and for damages for breach. From a judgment for plaintiff for $671.35, defendant brings error.

Harry A. Biossat, for plaintiff in error.

Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.

*

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

Mr. Justice Barnes

delivered the opinion of the court.

*378Abstract of the Decision.

1. Municipal Court of Chicago, § 13 * —statement of claim on contract. In suit on a contract, the covenants being' mutual and dependent, the statement of claim must allege tender of performance or facts excusing the same.

2. Municipal Court of Chicago, g 13*—pleading defenses. When statement of claim on a contract containing mutual and dependent covenants does not aver tender of performance -or excuse therefor, an affidavit of merits setting up want of tender, held a good defense.

3. Contracts, § 298*—necessity of tender of performance. Covenants in a contract whereby one party agrees to purchase and the other agrees to sell and deliver are mutual and dependant covenants, and neither party, without tender of performance, can demand performance of the other.