#### Louis Waldschmidt et al., copartners, trading as Dunbar Mill & Lumber Company, Defendants in Error, v. The Marsh & Bingham Company, Plaintiff in Error.

Gen. No. 21,660.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Affirmed.

Opinion filed February 7, 1917.

Statement of the Case.

Action by Louis Waldschmidt, Jesse W. Rule and Samuel B. Brown, copartners, trading as Dunbar Mill & Lumber Company, plaintiffs, against the Marsh & Bingham Company, defendant, to recover a balance due for lumber shipped under a written contract which called for a much larger shipment, to which a set-off was filed claiming damages for failure to ship the balance oí the lumber. From a judgment for plaintiff, defendant brings error.

Adams, Crews, Bobb & Wescott, for plaintiff in error; George B. McKibbih, of counsel.

*366Abstract of the Decision.

1. Sales, § 320 * —when defendant may not recover on set-off for failure to deliver remainder of lumber on contract. Where the sellers of a quantity of lumber refused to make further shipments under the contract with the purchaser on the ground that the purchaser had improperly rejected a large part of past shipments, and brought an action for deliveries already made, and defendant interposed a claim of set-off for damages for failure to deliver the remainder of the lumber under the contract, held that plaintiffs were entitled to recover although they may have been first in default for failing to make timely shipments, even if time were of the essence of the contract, where the purchaser had made no objection on that ground and insisted on further shipments.

2. Sales, § 309 * —when immaterial whether contract is severable or entire. Under a contract for shipment of a quantity of lumber purchased, where the purchaser was guilty of a breach of the contract which entitled the seller to refuse to make further shipments, held that the seller would be entitled to recover for past deliveries and no question would arise as to whether the contract was severable or entire.

Samuel Friedlander, for defendants in error.

*

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

Mr. Justice Goodwin

delivered the opinion of the court.