Clinton Co. v. Stiles , 197 Ill. App. 505 ( 1916 )

Mr. Justice Holdom

delivered the opinion of the court.

4. Frauds, Statute of, § 13^*—what constitutes original undertaking. A contract made for the benefit of a third person is an original undertaking and is not required to be in writing under the Statute of Frauds, such a contract not being within the statute. 5. Contracts, § 349^*—when third person may maintain action on contract for his benefit. In order that a third person may maintain an action on a contract made for his benefit, it is not necessary that the consideration of the contract move from such third person, providing he elects to affirm the promise made in his behalf. 6. Contracts, § 349^*—what constitutes affirmation by third person of promise on his behalf. A third person who brings suit on a contract made for his benefit thereby affirms the promise made in his behalf. 7. Municipal Court of Chicago, § 13^*—what constitutes waiver of objection to statement of claim. A defendant waives objection to plaintiff’s statement of claim in that such claim does not state a cause of action by pleading and proceeding to trial on the merits. 8. Municipal Court of Chicago, § 13^*—when defense not pleaded in affidavit of merits unavailable. In. an action to recover for goods sold and delivered, the defenses that the goods delivered are unsatisfactory or not in accordance with the contract are not available to defendant on the trial if he has not pleaded such defenses in his affidavit of merits, since defendant on the trial is limited to the defenses made by his pleading. 9. Trial, § 204^*—when verdict properly directed. Where defendant offers no evidence and plaintiff’s evidence establishes his claim, it is proper to direct a verdict for plaintiff for the amount claimed. 10. Appeal and error, § 1523^*—when verdict not reversed on appeal. Where defendant offers no evidence and plaintiff’s evidence establishes his claim, a court of review will not reverse although there were errors in instructions.