#### John Hemwall Automobile Company, Plaintiff in Error, v. Michigan Avenue Trust Company, Defendant in Error.

Gen. No. 21,149.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding.

Heard in this court at the March term, 1915.

Reversed with judgment here.

Opinion filed December 6, 1915.

Statement of the Case.

Action by the John Hemwall Automobile Company, a corporation, plaintiff, against the Michigan Avenue Trust Company, a corporation, defendant, to recover back money paid on a contract for the purchase of automobiles. To reverse a judgment of nil capiat, plaintiff prosecutes this writ of error.

May 27,1913, plaintiff and the Midland Motor Company entered into a written contract whereby the motor company agreed to sell and deliver to plaintiff six auto*408mobiles, Model T-6-50, “fully equipped as per catalogue” at $1,400 each, and to deliver one car by May 29th and the others within two weeks from the date of the contract; and the defendant agreed to pay for said cars, “fully equipped as per catalogue and covered in this agreement $600 cash upon signing of this agreement ; this amount being a deposit of $100 on each of the six cars; it being mutually understood that we are to deduct $100 from the net price of each car as delivered, making a balance due of $1,300 on each car delivered.” The defendant took over the contract and undertook its performance. It delivered two cars to plaintiff for which the latter paid, but complained that the cars so delivered were not equipped as required by the contract, and notified defendant that it would not accept other cars until they were fully equipped as required by the contract. The defendant tendered four cars, but plaintiff refused to accept them on the ground that they were not equipped as required by the contract. The defendant then sold the cars for $1,300 each and claimed on the trial the right to set off the $100 difference on each car between the contract price and the price at which the cars were sold, against the claim of plaintiff for the $400 deposited as an advance payment on the four ears.

It was conceded that the cut in the catalogue, purporting to be a cut of the automobile specified in the contract, shows six rims and six tires on each car and a gas tank on the rear of the car, and that the cars delivered and those tendered did not have six rims or six tires. White, a witness called by defendant, testified that the automobiles tendered were not equipped according to pictures and cuts in the catalogue. The specifications in the catalogue do not specify the number of tires or rims.

The cashier of defendant in a letter to plaintiff dated July 1,1913, said: “Mr. Sackett (an employee of defendant) advises that the' next car you receive is to *409be delivered without tires, in view of the fact that you had to equip the last one you sold with Firestone tires; we will therefore make a reduction covering the cost of a set of tires from the price of the car.”

Abstract of the Decision.

1. Contracts, § 224 * —how stipulation as to equipment of automobile construed. Where a contract for the purchase of automobiles “fully equipped as per catalogue,” and where a cut purporting to be a cut of the type of car contracted for which was printed in said catalogue shows a particular equipment of tires and rims, the cars tendered in performance of the contract must be similarly equipped, although the printed specifications for such cars in such catalogue do not require such equipment, the cuts being as much part of the catalogue as the specifications.

2. Contracts, § 387 * —when evidence insufficient to show performance. In an action to recover back money paid under a contract for automobiles “fully equipped as per catalogue,” where plaintiff refused to accept cars tendered in performance of the contract on the ground that such cars were not as required by the contract, evidence held insufficient to show that the cars tendered were equipped as required by the contract.

Cavender, Kaiser & Wermuth, for plaintiff in error.

Brown, Brown & Brown, for defendant in error.

*

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

Mr. Justice Baker

delivered the opinion of the court.