#### Heinrich Waldes et al., trading as Waldes & Company, Appellants, v. W. R. Hanes, Appellee.

Gen. No. 22,593.

(Bot to he reported in full.)

Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed January 22, 1917.

Statement of the Case.

Action by Heinrich Waldes, Siegmund Waldes, Ignatz Hue and Edward Meszenger, copartners, trading as Waldes & Company, plaintiffs, against W. R. Hanes, defendant, to recover for goods sold, to which the defendant claimed a set-off under a warranty of fitness of the goods for a special purpose. From a judgment *277for defendant for $275, upon trial by a jury, plaintiffs appeal.

Abstract of the Decision.

1. Appeal and ebbor, § 1526 * —when instructions are not reversibly erroneous. Instructions which were so confusing, misleading and prejudicial as to compel reversal in a close case will not do so where under the undisputed evidence the jury returned the only verdict they could properly return.

2. Instructions, § 135 * —when failure to give instruction cannot be complained of. Failure to give an instruction, in an action for damages, as to measure of damages cannot he complained of on appeal where neither party requested such an instruction.

3. Sales, § 404 * —what is measure of damages for breach of warranty of fitness for special purpose. In an action for damages for breach of warranty of fitness for a special purpose of goods purchased, held that proper elements of damage were the difference between their agreed price and the price the purchaser was obliged to pay for goods that answered the purpose, also that the use of the unfit goods made worthless other goods on which they were used and also payment of freight and duty on the unfit goods.

Normah K. Aetdersow, for appellants.

Carhahah, Blsdoh & Slusser, for appellee.

*

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

Mr. Presiding Justice McSurely

delivered the opinion of the court.