#### A. M. Chesbrough, Defendant in Error, v. Jacob Lanski, Plaintiff in Error.

Gen. No. 22,509.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed February 19, 1917.

Rehearing denied March 5, 1917.

Statement of the Case.

Action by A. M. Chesbrough, plaintiff, against Jacob Lanski, defendant, to recover the price of a quantity of scrap iron delivered to the defendant under a contract of purchase. From a judgment for plaintiff for one hundred and ninety dollars, defendant brings error.

*193Abstract of the Decision.

1. Sales, § 138 * —when buyer cannot complain of refusal of seller to make delivery. Where the defendant offered to purchase scrap iron of the plaintiff at a certain price per ton, and to take all the plaintiff had at that price, and plaintiff delivered one carload of the iron but refused to deliver more until that was paid for, which the defendant refused to do unless the plaintiff would deliver all the remainder he had, and complained of the quality of the iron delivered, held, in an action to recover at the agreed price for the iron delivered, that the defendant was not warranted in refusing to pay for same and at the same time requesting further deliveries, or on the ground plaintiff had not delivered the remainder of the iron because the contract did not call for any specific quantity.

2. Sales, § 324*—when presumed, that payment became due as of date of delivery of material. Where a contract for the purchase and delivery of a quantity of material contains no provision as to the time of payment, it will be presumed, in an action to recover the purchase price, that the payment became due as of the date of the delivery of the material.

Samuels & Samuels, for plaintiff in error.

Scott, Bancroft, Martin & Stephens, for defendant in error.

*

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

Mr. Justice Dever

delivered the opinion of the court.