#### Johnston City Coal Company, Defendant in Error, v. Adolph Kuecken and Minnie Kuecken, Plaintiffs in Error.

Gen. No. 20,280.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. William N. Gemmlll, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Reversed and remanded.

Opinion filed April 13, 1915.

Rehearing denied April 27, 1915.

Statement of the Case.

Action by Johnston City Coal Company, a corporation, against Adolph Kuecken and Minnie Kuecken to recover the purchase price of goods delivered. Plaintiff alleged delivery to defendants, trading as partners under the firm name and style of Wm. Kuecken & Company. Defendants in their affidavits of merits, without denying delivery to the firm, did deny delivery to them as members of the firm, and further denied that they ever transacted business as copartners under such firm name and. style as alleged. From a judgment for plaintiff below, defendants bring error.

*268Abstract of the Decision.

Pleading, § 117 * —what not an admission by failure to deny. Where in an action to recover the price of coal alleged in the statement of claim to have been sold to the defendants as partners, the defendants while not explicitly denying the value nor the delivery did deny that same was delivered to them as partners, or that they were partners, a ruling that plaintiff was not required to prove price or delivery on the ground that same not having been denied was admitted, is erroneous.

Henry D. Coghlan, for plaintiffs in error.

Maguire & Mooney, for defendant in error.

*

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

Mr. Justice Smith

delivered the opinion of the court.