#### E. L. Essley Machinery Company, Appellee, v. Dann Oil Cushion Spring Insert Company, Appellant.

Gen. No. 22,418.

(Hot to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Reversed with finding of fact.

Opinion filed May 29, 1917.

Statement of the Case.

Action by E. L. Essley Machinery Company, a corporation, plaintiff, against the Dann Oil Cushion Spring Insert Company, a corporation, defendant, on a quantum meruit, for merchandise sold and delivered. From a finding and judgment for plaintiff, defendant appeals,

*601Abstract of the Decision.

1. Appeal and erbob, § 1173*—what is subject of review where no propositions of law are submitted or rulings on law involved. On appeal from a judgment in a case tried by the court without a jury, where no propositions were submitted to be held as the law of the case and there were no rulings involving any controlling question of law, the only question for review is whether or not the findings and judgment of the court are contrary to the evidence.

2. Assumpsit, Action op, § 89 * —when evidence sufficient to sustain judgment on quantum meruit for goods sold and delivered. In an action on a quantum meruit for merchandise sold and delivered, evidence examined and held insufficient to support a finding and judgment for plaintiff.

3. Sales, § 276*—when machinery may be returned at any time within time limited. Where machinery is sold under a contract which provides for payment in sixty days and guarantees that it will work satisfactorily for one year and that, in case it is unsatisfactory, it may be returned at any time within the year, the purchaser may return it at any time within such stipulated period.

4. Sales—when seller may not abandon contract although goods not paid for within time limit. The fact that machinery, which is sold under a contract providing for payment in sixty days and with the privilege of returning it at any time within a year if it is unsatisfactory, is not paid for in sixty days, does not entitle the seller to abandon the contract and sue on a quantum meruit, where the evidence shows that the machinery was unsatisfactory and the seller, within the year, agreed to come and get it.

Frederic R. De Young, for appellant.

Harry A. Biossat, for appellee.

*

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

Mr. Presiding Justice Barnes

delivered the opinion of the court.