#### The Lord & Bushnell Company, Defendant in Error, v. W. J. Campbell, trading as W. J. Campbell Lumber Company, Plaintiff in Error.

Gen. No. 20,726.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1914.

Reversed and judgment here.

Opinion filed March 8, 1915.

*608Abstract of the Decision.

1. Set-off and bbcottpment, § 40 * —when evidence insufficient to establish. Evidence examined and held insufficient to establish contract whereon claim of set-off based.

2. Contbacts, § 372*—when existence not affected by destruction of writing evidencing it. The fact that the original writing evidencing the terms of an agreement entered into between the parties, which was signed and delivered, is destroyed does not destroy the agreement, but the terms of the agreement may be „ shown by introducing a copy.

Statement of the Case.

Action by The Lord & Bushnell Company, a corporation, plaintiff, against W. J. Campbell, trading as W. J. Campbell Lumber Company, defendant, to recover an unpaid balance claimed to be due for the purchase of certain lumber sold to defendant. The sale and delivery of the lumber at the price alleged was admitted by defendant, but he claimed to have had a contract with plaintiff for further lumber at the same price and that this contract was violated by plaintiff’s refusal to deliver the balance of the lumber, to the damage of defendant.

The agreement between the parties was created through letters between them which were introduced in evidence.

Plaintiff’s statement of claim also included an item for an allowance on lumber bought of defendant but rejected by plaintiff and an agreement by defendant to make such allowance was established.

To reverse a judgment for plaintiff for $359.19, defendant prosecutes this writ of error.

Morse Ives, for plaintiff in error.

Louis J. Behan, for defendant in error.

*

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

Mr. Justice McSurely

delivered the opinion of the court.