#### Winfield & Elliott Packing Company, Appellee, v. G. H. Cross, Appellant.

Gen. No. 19,873.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed November 10, 1914.

Statement of the Case.

Action by Winfield & Elliott Packing Company against Gr. H. Cross to recover money claimed to have been collected for plaintiff and withheld from it by defendant. The affidavit of merits set up the nature of the defendant’s defense in the following language:

“That on to-wit, Aug. 5, 1912, this defendant advanced to one H. H. Elliott, the promoter of said corporation and one of the organizers and original stock subscribers thereof the sum of Five Hundred *411($500.00) Dollars, which said sum is evidenced by one certain judgment note executed by H. H. Elliott, copy of which is hereto attached and which said sum so advanced by this defendant to said H. H. Elliott, was to be used in the building and construction of a certain building, to-wit, Shipping Station at Miami, Florida, and in and about the business of the said plaintiff then in the process of organization and which said sum so advanced to H. H. Elliott, this defendant is informed and believes the fact to be true was used_ in the construction of said building, to-wit: Shipping Station aforesaid, and which said building this defendant is informed and believes the fact to be true is now used by said plaintiff in and about the said business.”

Abstract of the Decision.

1. Pleading, § 153 * —when affidavit of merits insufficient. In an action to recover money claimed to have been collected for plaintiff and withheld by defendant, an affidavit of merits stating that defendant advanced to a certain person who was a promoter of plaintiff corporation, etc., held properly stricken from the files as not setting forth facts from which acceptance or plaintiff’s knowledge of the transaction could be inferred or such fact as constituted a defense.

2. Pleading, § 153 * —essentials for affidavit of merits. Section 55 of the Practice Act, J. & A. ¶ 8592, requires an affidavit of merits to specify the nature of the defense, and contemplates a statement of facts showing a legal defense.

The court entered an order striking the affidavit from the files and entered judgment as of default against defendant for $515 and costs. To reverse the judgment, defendant appeals.

Charles W. Stiefel, for appellant.

Ralph L. Peck, for appellee.

*

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

Mr. Presiding Justice Barnes

delivered the opinion of the court.