#### Ernest Wasmuth, Appellee, v. Frank Lloyd Wright, Appellant.

Gen. No. 21,336.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.' Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed June 1, 1916.

Statement of the Case.

Action by Ernest Wasmuth, plaintiff, against Frank Lloyd Wright, defendant, on a promissory note. From a judgment for plaintiff, defendant appeals.

In this case judgment was entered by default for plaintiff after the court had stricken defendant’s affidavit of merits from the files and he had failed to file another within the time allowed.

*528The only question argued and presented was whether such affidavit showed a legal defense.

Plaintiff’s original statement of claim rested on a promissory note dated August 28, 1913, and an account. Defendant’s original affidavit of merits set up a defense to part of the account, and admitted execution and delivery of the note, but claimed it was given pursuant to the terms of certain agreements entered into between the parties hereto in 1909 and 1911 respectively, which provided that the title to certain personal property should remain in defendant. It further alleged that plaintiff had failed to deliver said property to defendant, and that therefore the consideration for the notes had partly failed, and would fail entirely unless plaintiff delivered such property to defendant.

Thereupon plaintiff filed an amended statement of claim which in effect stated a cause of action on the note alone. But it unnecessarily set forth the consideration of the note. To that end it alleged that the parties had entered into two settlement" agreements whereby they had adjusted disputes that had arisen between theih over the agreements of 1909 and 1911, alluded to in defendant’s affidavit of merits, and that said note was one of several executed and delivered pursuant to the settlement agreements.

To the amended claim defendant filed another affidavit of merits, setting up, in substance, the same defense as in the original affidavit of merits, and stating that said settlement agreements adjusted only such matters as were then in dispute and that no dispute had then arisen as to the title to said personal property, and that “it.was understood” that defendant’s said property would be returned to him, and that defendant did not discover that such property had not been returned to him until after the execution of the • settlement agreements, believing however that it had been. The affidavit then set up grounds by way of *529excuse for his failure to make such discovery, and claimed a total failure of consideration for the notes, but offered to pay the balance due on said note upon the return of said property to him.

Abstract of the Decision.

1. Municipal Court of Chicago, § 13 * —when statement of claim in action on promissory note sufficient. In an action on a promissory note, it is unnecessary to set forth the consideration therefor in the statement of claim.

2. Municipal Court of Chicago, § 13*—when statement of claim sets up cause of action on note only. A statement of claim setting up a promissory note given the plaintiff by the defendant and alleging that the parties had entered into settlement agreements whereby they had adjusted disputes arising out of certain prior agreements and that the note was one of several executed and delivered pursuant to the settlement agreements, held to state a cause of action based on the note only.

3. Municipal Court of Chicago, § 13*—when affidavit of merits does not state legal defense to action on promissory note. To a statement of claim, based on a promissory note given the plaintiff by the defendant, alleging that the consideration for such note was the adjustment by settlement agreements of disputes growing out of prior agreements, an affidavit of merits admitting the execution and delivery of the note but claiming that the settlement agreements adjusted only such matters as were then in dispute, that no dispute had then arisen as to title to certain personal property which “it was understood” would be returned to the defendant, that he did not discover that such property had not been returned to him until after the execution of the settlement agreements but believed that it had been, setting up grounds by way of excuse for failure to make such discovery, claiming a total failure of consideration and offering to pay the balance due on *530said note upon the return of the property, held, not to state a legal defense.

*529Sherman M. Booth, for appellant.

Elbert C. Ferguson, for appellee.

*

See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, j-jume topic and section number.

Mr. Justice Barnes

delivered the opinion of the court.

*5304. Wobds and phbaseS'—what is justice. Justice, as administered by the courts, is not something separate and apart from the legal or equitable principles on which it rests.