#### Power Equipment Company, Appellant, v. Gale Installation Company, Appellee.

Gen. No. 23,806.

(Not to be reported in full.)

Abstract of the Decision.

1. Assumpsit, Action of, § 6 * —when indebitatus assumpsit not proper form, of action. Indebitatus assumpsit is not the proper form of action where the agreement sought to be enforced is not for the payment of money for machinery but for the liquidation of the debt by the obtaining of notes from a third party for whom defendant is acting.

2. Pleading, § 248*—when discretion of court in permitting filing of amended plea and affidavit of merits not abused. A trial court does not abuse its discretion in permitting, four months before the time of trial, the filing of an amended plea and affidavit of merits, where the first affidavit is fatally defective.

Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.

Heard in this court at the October term, 1917.

Affirmed.

Opinion filed March 25, 1918.

Statement of the Case.

Action by Power Equipment Company, a corporation, plaintiff, against Gale Installation Company, a corporation, defendant, to recover on the common counts for the expense of substituting new boilers in place of secondhand ones, and other extras, payments for which were to be made by the notes of the Lomax Town Company, for which defendant was acting. From a judgment of nil capiat and for costs, plaintiff appeals.

Hoyne, O’Connor & Irwin, for appellant.

Lambert & Mayer, for appellee.

*

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

Mr. Presiding Justice

Holdom delivered the opinion of the court.