#### Arthur C. Marshall, Plantiff in Error, v. Delaware, Lackawanna & Western Railroad Company, Defendant in Error.

Gen. No. 22,525.

(Not to be reported in full.)

Abstract of the Decision.

Municipal Court oe Chicago, § 13 * —when affidavit of defense is sufficient. In an action by a shipper against the carrier to recover damages for the negligent shipment of fruit, an affidavit of defense in which defendant denied that the fruit was delivered to the initial carrier in sound condition, that it was damaged while in its possession by any act on its part or that any damage resulted to the fruit while in its possession, and averred that the fruit was sold by defendant in a damaged condition after notice to plaintiff, and at its request, that the net amount realized from the sale, being the amount of judgment, was tendered to plaintiff and refused, that defendant acted in good faith, and that no notice of plaintiff’s claim was made within four months, as required by the terms of the contract to carry, held sufficient.

Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed January 8, 1917.

Rehearing denied January 22, 1917.

Statement of the Case.

Action by Arthur C. Marshall, plaintiff, against Delaware, Lackawanna & Western Railroad Company, a corporation, defendant, to recover damages for the negligent shipment of fruit. From a judgment for $99.20, being only a part of the claim, plaintiff brings error.

Stewart Reed Brown, for plaintiff in error.

Adams, Follansbee, Hawley & Shorey, for defendant in error.

*

Soe Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tppio and section number.

Mr. Justice Holdom

delivered the opinion of the court.