Frost v. Van Cleef (291 Ill. App. 363, 1937)

Mr. Justice Hall

delivered the opinion of the court.

Judgment was entered in favor of • plaintiffs and Against defendants in the superior court of Cook county for the sum of $1,200, after a trial by the court without a jury. The action is predicated upon an alleged breach of an oral contract, wherein it is claimed that defendants undertook and agreed to rubberize certain fabric furnished by defendants to plaintiffs, to be used by plaintiffs in the manufacture of upholstering for church kneelers.

Elmer Frost, an employee of plaintiffs, testified to the effect that about July 14, 1931, he had a conversation with one of the defendants — whom he identified in court as Noah Van Cleef — at defendants’ place of business, with reference to purchasing rubberized fabric or cloth from defendants, and that a man named Netzel was with the witness at the time; that Frost inquired of Van Cleef whether or not the rubberized material which defendants manufactured could be used in upholstering, and that Van Cleef’s reply was that it could be so used; that the witness told Van Cleef that plaintiffs desired-to upholster pew kneelers in churches, and that it had been found that artificial leather was not satisfactory, because it would crack up and deteriorate; that Van Cleef told the witness that defendants were, at the time, using rubberized fabric for automobile tops and seats, and that the witness afterwards gave defendants a “sample order” for a considerable amount of the material for plaintiffs to try out. The record indicates that this order is dated September 30, 1931, and recites, in substance, that plaintiffs purchased from defendants 150 yards of rubberized cloth. The order contains the following recitation: “Per sample attached.” The record does not show