#### A. Magnus Sons Company, Appellee, v. Atlantic Brewing Company, Appellant.

Gen. No. 21,309.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Richabd E. Btjbke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed June 19, 1916.

Statement of the Case.

Action hy A. Magnus Sons Company, a corporation, plaintiff, against Atlantic Brewing Company, a corporation, defendant, to recover the contract price of certain machinery and a sum due on open account. From a judgment for plaintiff, defendant appeals.

*599Abstract of the Decision.

1. Sales, § 329 * —when evidence sufficient to show that machinery not defective and compliance with contract as to installation and instruction. In an action to recover the contract price of a gas collecting and carbonating system which was to be installed by the seller, the seller also agreeing to instruct the purchaser in the operation of the system, where it appeared that owing to the delay of the purchaser to furnish proper tanks no attempt was made to install the machinery until nearly a year after the purchase, when the purchaser informed the seller that the gas compressor, which had been placed in a damp basement, leaked and that the seller would have to take the machinery back, evidence held sufficient to sustain a finding that the gas compressor was not defective, but that the leak was due to the machinery being kept in a damp basement, that the seller had complied with its contract to furnish an expert to install the system and to give instructions as to its use, and that the purchaser, by his own acts, had prevented the seller from installing the system so that a test could be made as provided by the contract.

2. Appeal and erbob, § 1526*—when giving of improper instructions not prejudicial error. The giving of improper instructions is not prejudicial error where the jury could not have returned any other verdict than the one they did.

James J. Kelly, for appellant; John A. Burke and John T. Fitzgerald, of counsel.

Frank T. Murray, for appellee.

*

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

Mr. Presiding Justice Pam

delivered the opinion of the court.