#### George Ehrat, trading as George Ehrat & Company, Appellee, v. V. Marrone and R. Lofaro, trading as Marrone & Lofaro, Appellants.

Gen. No. 23,140.

(Not to he reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.

Affirmed.

Opinion filed November 30, 1917.

Statement of the Case.

Bill by George Ehrat, trading as George Ehrat & Company, complainant, against V. Marrone and B. Lofaro, trading as Marrone & Lofaro, defendants, to restrain the enforcement of a claim against complain*231ant upon which suit had been begun in the Municipal Court of Chicago, in which it had been held that complainant’s claim of set-off could not be entertained because of being for unliquidated damages growing out of another transaction. From a decree for complainant, defendants appeal.

Abstract of the Decision.

1. Sales—what does not constitute waiver of buyer’s claim against seller for unliquidated damages for injury to goods in transit. The acceptance of goods by the buyer in ignorance of the fact that the seller had violated the buyer’s instructions to take out insurance in his name does not constitute a waiver of the buyer’s claim against the seller for unliquidated damages growing out of the injury to the goods in transit.

2. Sales, § 243 * —when implied warranty as to merchantibility of goods exists. In sales of merchandise intended for resale, there is an implied warranty that the goods shall be merchantable.

3. Sales, § 387*—what is remedy of purchaser upon breach of warranty of quality of goods. Where there is an express or implied warranty of quality, the purchaser may receive the goods and recover the damages resulting from a breach of the warranty.

John C. Burchard, for appellants.

Edward J. Kelley, for appellee.

*

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

Mr. Presiding Justice Goodwin

delivered the opinion of the court.