#### B. F. McKeage, Jr. and Charles F. DaCosta, Appellees, v. Scully-Kostner Coal Company, Appellant.

Gen. No. 18,932.

(Not to be reported in full.)

Appeal from the Municipal Court "of Chicago; the Hon. Charles A. Williams, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed February 3, 1914.

Certiorari allowed by Supreme Court.

*123Abstract of the Decision.

1. Action, § 35 * —form of. An action is not for money had and received but an action founded on a breach of a written contract, where the statement of claim after alleging and setting forth the contract alleges the facts constituting the breach and that plaintiff had been damaged thereby.

2. Contract, § 36 * —when no variance as to parties. The fact that one of tiré parties suing on a written contract did not actually sign the contract does not constitute a variance between the statement of claim and the proof, where he accepted the contract and did all he was required to do thereunder.

3. Contracts, § 53 * —when signature unnecessary. Though one of the parties mentioned in the contract as the party of the second part did not sign the contract he is a party thereto and bound thereby if he accepted it and did everything that he was required to do under it.

4. Contract, § 386 * —when defense of want of consideration not sustained ly the evidence.' In an action for breach of a contract for the assignment of a judgment wherein defendant had agreed to assign to plaintiff a judgment it had recovered against a certain company of which the plaintiffs were officers, in consideration that the plaintiffs would pay a certain sum in cash and give notes for the balance of the price agreed upon, and had further agreed that in case bankruptcy proceedings were started against the company *124within sixty days from the date of signing the contract it would refund the amount paid and deliver up the notes on reassignment to him of the judgment by plaintiffs, held that the defense that there was no consideration for the agreement to return the money and notes for the reason that the company and one of the plaintiffs were one and the same, and therefore the company was paying its debt, was not sustained by the evidence.

*123Statement of the Case.

Action by B. F. McICeage, Jr. and Charles F. Da Costa against Scully-Kostner Coal Company to recover damages for breach of a v ritten contract entered into between plaintiffs and the defendant with reference to the assignment of a judgment. From a judgment in favor of plaintiffs for $1,263.39 entered upon a directed verdict, defendant appeals.

Jones, Bryant, Keener, Ring & Posvio, for appellant.

Adams, Bobb & Adams, for appellees.

*

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

Mr. Presiding Justice Smith

delivered the opinion of the court.