Foster Drug Co. v. Zeller & Sons Co.

Mr. Justice Smith delivered the opinion of the court. 2. Municipal Coubt of Chicago, § 13*—insufficiency of defense as ground for striking affidavit of merits. Portions of an affidavit of merits filed in the Municipal Court may be stricken where the same do not present a defense to the action. 3. Appeal and ebbob, § 1488*—effect of improper evidence where other evidence sufficient to sustain court’s finding. Where it was contended that the trial court erroneously admitted a letter from defendant to plaintiff and the invoice of articles thereon referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or that it was received by the plaintiff, held that even if the evidence was improperly admitted it would not constitute reversible error, since it will be presumed that the trial court disregarded any improper evidence when there is sufficient competent evidence to justify the finding of the court on a trial without a jury. 4. Depositions, § 42*—waiver of insufficiency of foundation for introduction of letter. The objection that a trial court improperly admitted a letter from defendant to plaintiff and an invoice of articles therein referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or was received by plaintiff, cannot be taken advantage of where such evidence was in a deposition and the objection was not raised before the trial. 5. Sales, § 199*—effect of delivery to carrier to pass title to consignee. Where the purchaser of goods delivers the same to a carrier for transportation to the seller under an express contract providing for the return of the same, the title to the goods passes to the consignee when they are delivered to such carrier. 6. Sales, § 430*—waiver of right to object to return of goods. In an action for the invoice price for goods returned under the provisions of an express, contract providing for the return of the same, where defendant’s agent testified that defendant was prepared to repurchase the goods as soon as it had an opportunity to inspect them, and that it had at all times been prepared to accept the goods as soon as it had an opportunity to inspect and had been given the information as to the quantity and quality on hand, the refusal of the goods upon such ground by the consignee was a waiver of all other grounds of which the consignee then had knowledge, such as the claim that they should not have been shipped by express.