#### Louis Buendert, Plaintiff in Error, v. Charles Bostrom et al., trading as Henry E. Strassheim & Company, Defendants in Error.

Gen. No. 20,790.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed October 6, 1915.

Statement of the Case.

Action of the fourth class in the Municipal Court of Chicago by Louis Buendert against Charles Bostrom, *56Henry E. Strassheim and Adolph F. Boericke, trading as Henry E. Strassheim & Company. The plaintiff’s original statement of claim and the first and second more specific statements of claim, having been stricken from the files on motion of the defendants, the plaintiff, pursuant to the order of the court, filed Ms third more specific statement of claim. On motion of the defendants, this last-mentioned statement of claim was ordered stricken from the files and the suit was dismissed at the plaintiff’s costs. This writ of error followed.

Abstract of the Decision.

Municipal Court of Chicago, § 13 * —when statement of claim erroneously stricken from files. Statement of claim in an action to recover money paid on a contract for the purchase of realty on the ground that such payment was induced by the fraudulent representations of the defendants as to the dimensions of the property covered by the contract, held sufficient to present a claim for fraud and deceit, and hence the striking of the statement from the flies on the theory that the plaintiff was attempting to vary a written contract by antecedent representations was erroneous, since the plaintiff’s action was not based upon the contract.

Jarrell & McNeil, for plaintiff in error.

William G. Wise and Roger Faherty, for defendants in error.

*

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

Mr. Presiding Justice Scanlan

delivered the opinion of the court.