#### Sturtevant Mill Company, Appellee, v. Wearcrete Engineering Company, Appellant.

Gen. No. 22,422.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.

Affirmed.

Opinion filed October 10, 1917.

Rehearing denied October 23, 1917.

Certiorari denied by Supreme Court" (making opinion final).

Statement of the Case.

Action by Sturtevant Mill Company, plaintiff, against the Wearcrete Engineering Company, defendant, to recover on a written contract for the purchase by defendant of a certain machine for $2,300. From a judgment for plaintiff for $2,725, defendant appeals.

*472Abstract of the Decision.

1. Pleading, § 150 * — when affidavit of merits is mere subterfuge interposed for delay. Defendant’s affidavit of merits held to set up a defense which was an afterthought and mere subterfuge interposed for delay, where it was filed just before trial commenced and after several prior affidavits of merits in which no mention of such defense was made had been filed and abandoned or stricken from the files.

2. Pleading, § 155* — when refusal to permit filing of affidavits of merits is proper. Where repeated affidavits of merits, all substantially to the same effect, had been filed and either abandoned or stricken from the files before trial, held that the same were apparently offered not in good faith but for delay, and there was no abuse of discretion in the refusal of the court at the trial to permit further similar affidavits of merits to be filed.

3. Appeal and eebob, § 1526* — when instructions not prejudicially erroneous. Where no other verdict than that rendered would stand, held that instructions were not prejudicially erroneous, although not correct in all particulars.

Foster, Payne, Beynolds & Bryant and Thomas Mack, for appellant.

Bryan, McCormick & Webber, for appellee.

*

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

Mr. Justice O’Connor

delivered the opinion of the court.