#### D. I. Bushnell and R. W. Pommer, partners, trading as D. I. Bushnell & Company, Plaintiffs in Error, v. Henry H. Chester, trading as H. H. Chester & Company, Defendant in Error.

Gen. No. 21,573.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Affirmed.

Opinion filed January 17, 1917.

Rehearing denied January 29, 1917.

Statement of the Case.

Action by D. I. Bushnell and R. W. Pommer, partners, trading as D. I. Bushnell & Company, plaintiffs,, against Henry H. Chester, trading as H. H. Chester & Company, defendant, to recover the sum of $566.50 as damages alleged to have been sustained by reason of defendant’s failure to carry out a written contract for the sale of onion sets. From a judgment for costs in favor of defendant, plaintiffs bring error.

*230Abstract of the Decision.

1. Saxes, § 366 * —when fact that onion sets are not actually screened through sieve of required dimension does not bar recovery for breach of contract. Where a contract for the sale of a specified quantity of onion sets of specified varieties provides that the sets shall be screened through a sieve with a mesh of a specified dimension, the mere fact that the sets are not actually screened through a sieve with a mesh of such required dimension does not bar a recovery if the sets are of the size called for by the contract.

2. Saxes—when contract may not be rescinded. A slight or partial neglect on the part of one of the parties to a contract of sale to observe some of the terms or conditions thereof will not justify the other party in at once abandoning the agreement.

3. Saxes, § 373 * —when evidence is sufficient to. show that contract is substantially performed. In an action by. the purchaser of onion sets against the seller for breach of contract where it appeared that defendant agreed to sell a specified quantity of onion sets of a specified variety which were to be screened through a óne-inch mesh sieve and plaintiff refused to accept the first shipment merely on the ground that a few were too large, whereupon defendant refused to ship any more, evidence held sufficient to show that the contract was substantially complied with.

Ashcraft & Ashcraft, for plaintiffs in error; Charles F. Eathbun, of counsel.

Been F. Éunyan, for defendant in error.

*

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

Mr. Presiding Justice O’Connor

delivered the opinion of the court.