Opinion
Gen. No. 41,181. (Abstract of Decision.)
Opinion filed November 4, 1940
PLEADING, § 387 — admissions, failure to deny. In action for purchase price of certain motors and gear reducers, counterclaim that motors were defective and were returned to plaintiff properly alleged ultimate facts and itemized damages, and it was error to strike counterclaim; affidavit of defense did not deny purchase, shipments or prices, and under section 40 of the Civil Practice Act plaintiff thus established a prima facie case and defendant was properly required to introduce its evidence first, but verdict should not have been directed for plaintiff, but jury should have passed on alleged defects in the motors (Ill. Rev. Stat. 1939, ch. 110, § 164; Jones Ill. Stats. Ann. 104.040).
See Callaghan's Illinois Digest, same topic and section number.
Appeal from Municipal Court of Chicago; Hon. CECIL C. SMITH, presiding.
Reversed and remanded. Heard in first division, first district, this court at April term, 1940.
Cavender Kaiser, for appellant;
Marcus L. Silver, for appellee;
Milton M. Hermann, of counsel.
"Not to be published in full." Opinion filed November 4, 1940.