#### John A. Donahue, trading as John A. Donahue & Company, Appellant, v. Wheeling Mold & Foundry Company, Appellee.

Gen. No. 22,856.

(Not to he reported in full,)

Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goo'dnow, Judge, presiding. Heard in this court at the October term, 1916.

Reversed and remanded.

Opinion filed April 16, 1917.

Rehearing denied April 30, 1917.

Statement of the Case.

Action by John A. Donahue, trading as John A. Donahue & Company, plaintiff, against the Wheeling Mold & Foundry Company, defendant, to recover for breach of a contract for the sale of a road roller busi*302ness. From a judgment for defendant for costs, plaintiff appeals.

Abstract of the Decision.

1. Appeal and error, § 1101*—what is effect of failure of appellee to file brief. In the absence of a brief by the appellee, the Appellate Court will, under its rules, accept as true the statement of the case as it appears in the brief of the appellant.

2. Municipal Court of Chicaqo, § 10 * —what is form of action of the fourth class. In an action of the fourth class in the Municipal Court, the form of action is such as the evidence makes it.

3. Municipal Court of Chicago, § 13a*—what does not constitute variance between statement of claim and evidence in action for breach of contract. In an action of the first class brought in the Municipal Court on a contract, where the plaintiff’s statement of claim alleged a contract for the sale of a certain business, and asserted that he had performed his part of the contract and that the defendant had breached the undertaking, and it appeared on the trial that the plaintiff had not performed his undertaking in certain particulars, and plaintiff undertook by evidence to explain such nonperformance, and the trial court held that such evidence constituted a variance between the statement of claim and the proof and decided against plaintiff’s claim, held that if nonperformance of some of the details of the undertaking was excusable or agreed upon between the parties, plaintiff was still entitled to recover whatever his damages might have been, and that the ruling against plaintiff on the ground of variance was error.

Cameron & Matson, for appellant.

Ninde, Potter & Rigby, for appellee.

*

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

Mr. Presiding Justice McSurely

delivered the opinion of the court.