#### Illinois Smelting & Refining Company, Appellant, v. Cyclone Fence Company, Appellee.

Gen. No. 22,683.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabks, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed March 12, 1917.

Statement of the Case.

Action by Illinois Smelting & Refining Company, a corporation, plaintiff, against Cyclone Fence Company, defendant, to recover $331.96 as balance due on the sale and delivery of 11,675 pounds of sheet zinc at 6% cents per pound. From a judgment for defendant upon a plea in recoupment and accord and satisfaction, plaintiff appeals.

The defendant claimed in its plea that plaintiff had agreed to deliver 40,000 pounds of the zinc, that defendant had been compelled to purchase the difference between that amount and the amount delivered in open market at an advance in price of 1% cents per pound, and that defendant had paid plaintiff $470.70 in accord and satisfaction of the account, including payments made by defendant on account of certain antimonial lead shipped by plaintiff to it and returned. The plaintiff contended that there was no agreement to deliver 40,000 pounds, and that the payment of $470.70 was on account.

Lotus S. Gibson, for appellant.

A. F. Beaubien and Charles C. Bombaugh, for appellee.

*

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.

*313Abstract of the Decision.

1. Sales, § 329 * —when evidence sufficient to show agreement to deliver specified quantity of material. Evidence held sufficient to sustain the finding that the plaintiff had agreed to deliver to the defendant 40,000 pounds of certain material, in an action to recover for a portion of such material delivered at the agreed price per pound.

2. Accord and satisfaction, § 4*—what constitutes. Where, after the delivery of a certain quantity of material, a dispute arose between the parties as to whether a certain larger quantity had been agreed to be delivered, and one of the parties who contended the agreement was that such larger quantity was to be delivered purchased the difference between it and the amount delivered in the open market at an advanced price and sent to the other party his check, which the latter accepted, for a certain amount, stating it was in payment for material delivered by such'other party after deducting the amount of the excess over the agreed price paid on such additional material purchased at an advanced price, and certain expenses, held that there was an accord and satisfaction between the parties by the giving and accepting of the check.

3. Sales, § 320*—when purchaser is entitled to deduct increased cost of goods purchased in marlcet from purchase price of goods delivered. Where the plaintiff had agreed to deliver to the defendant a certain quantity of material at an agreed price per pound, and after delivering a portion thereof failed to deliver the balance, and the defendant, after notice to the plaintiff that he would do so, purchased the balance in the open market at an advanced price per pound, held that the defendant was authorized to deduct from the amount of the delivered material at the agreed price per pound the excess over such price which he paid for the balance of the agreed amount.