Enrico Formella, trading as E. Formella & Company, Appellee, v. Durand & Kasper Company, Appellant.

Gen. No. 23,575.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed June 14, 1918.

Rehearing denied June 24, 1918.

Statement of the Case.

Action by Enrico Formella, trading as E. Formella & Company, plaintiff, against Durand & Kasper Company, a corporation, defendant, to recover damages for defendant’s breach of contract. From a judgment for plaintiff, defendant appeals.

*415Abstract of the Decision.

1. Sales, § 1* — when evidence is sufficient to meet requirements of contract. In an action by the vendee to recover damages for the vendor’s failure to deliver goods called for by a written contract, evidence -of tender of the purchase price by plaintiff on demanding delivery held sufficient to meet the requirements of the contract, there being evidence of a readiness, willingness and ability on the part of the plaintiff to take 'the goods, as required by Uniform Sales Act, sec. 42 [Callaghan’s 1916 St. Supp. 10021(45)].

2. Sales, § 166* — when practical construction given contract as not requiring cash on delivery. Vendor of goods held to have given a practical construction to thp contract as not requiring cash on delivery by extending a limited credit on deliveries made as it had done in previous dealings with the vendee.

3. Sales, § 163* — delivery and payment as concurrent conditions. Even though a contract for the sale of goods provided for cash on delivery, delivery and payment were concurrent conditions, and the purchaser was not required to pay unless the seller was ready and willing to deliver, under Uniform Sales Act, sec. 42 [Callaghan’s 1916 St. Supp. If 10021(45)].

4. Contbacts, § 53* — what is equivalent to formal execution. Even though one of the parties to a contract did not sign it, but such party held a copy of the contract and acted upon it, such action was equivalent to a formal execution.

Frederick J. Kasper, for appellant.

De Stefano & Mirabella, for appellee.