#### Industrial Manufacturing Company, Defendant in Error, v. Simon Deutsch and Edward L. Gross, trading as Electro-Mechanical Engineering Company, Plaintiffs in Error.

Gen. No. 19,034.

(Mot to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1913.

Affirmed.

Opinion filed March 10, 1914.

Statement of the Case.

Action by Industrial Manufacturing Company against Simon Deutsch and Edward L. Gross, copartners trading as Electro-Mechanical Engineering Com*349pany, to recover a balance claimed to be due under a written contract for the construction of a safety pin machine. From a judgment in favor of plaintiff for $694.50, defendants bring error.

Abstract of the Decision.

1. Building and construction contracts, § 103 * —When evidence sufficient to sustain recovery for construction of machine. In an action to recover a balance claimed to be due under a written contract with the defendants'for the construction of a safety pin machine according to blue prints furnished by the defendants and their oral instructions from time to time, it appeared that the machine when completed would not make pins as per samples submitted, held that the question whether the failure of the machine to make pins conforming with samples was due to error in the fundamental ideas or principles incorporated in the drawings of the defendants was for the jury, and that a judgment in favor of plaintiff was sustained by the evidence.

2. Building and construction contracts, § 105 * —tohen instruction not directory. In an action to recover for a balance due under a contract for the construction of a safety pin machine according to blue prints furnished by the defendants, part of an oral instruction given for plaintiff to the effect that if the jury believes that the plaintiff manufactured the machine according to the blue prints and oral instruction furnished by . defendant, and if they further believe that the failure of the machine to make pins as per sample was on account of errors in the fundamental ideas or principles incorporated in the drawings of defendants and not through any fault of the plaintiffs, then the jury is instructed as a matter of law that the plaintiff .was relieved from its agreement that it would make pins to conform to the samples submitted, held not a directory instruction, and the giving of same not reversible error.

Pollock, Sullivan & Livingston, for plaintiffs in error.

Harry Bierma, for defendant in error.

*

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

Mr. Presiding Justice Smith

delivered the opinion of the court.