#### Jennie Philippe, Appellee, v. John J. Curran and Isabella Curran, Appellants.

Gen. No. 19,871.

(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, 1913.

Reversed and remanded.

Opinion filed February 4, 1915.

*434Abstract of the' Decision.

1. Municipai, Court of Chicago, § *13*
      ***
      *—sufficiency of affidavit of merits to raise general issue.*An affidavit of merits that defendant is not liable to the plaintiff on the bond described in plaintiff’s statement of claim in any sum or amount is, in effect, a plea of the general issue presenting the issues of the case in the Municipal Court, as it by *necessary*implication denies the statement of facts making up the issue presented by the plaintiff’s statement of claim.

2. Municipal Court of Chicago, § *13*—effect of allegations of law and conclusions.*An allegation in a statement of claim in the Municipal Court that the amount of plaintiff’s damages, under a bond, is fixed by a deficiency decree rendered in certain foreclosure proceedings, to foreclose a trust deed to secure the payment of a note given in part payment of the purchase price of the property *435mentioned in the bond sued upon, is a conclusion and a statement of the law of the case.

*434Statement of the Case.

Action by Jennie Philippe against John J. Curran and Isabella Curran upon bond. From a judgment, for $5,669.28 against defendants in favor of plaintiff, defendants appeal.

■ John J. Curran purchased a piece of real estate assumed a mortgage for $4,000 and executed a mortgage for the purchase price of $30,000, no cash passing. He and the other defendant entered into a penal bond to erect a building on the property within a year to cost not less than $10,000. The building wás not erected. Plaintiff purchased the property at a foreclosure sale and a deficiency decree was entered for $5,435.49. Plaintiff then brought action to recover damages for the failure to erect on the premises foreclosed, an improvement at a cost of not less than $10,000, as provided for in the bond.

William A. Rogan, for appellants.

Bither, Goff & Francis, for appellee.

See Illinois Notes Digest, Vols. XI to XV, and Cumulative. Quarterly, same topic and section number.

Mr. Justice Pam

delivered the opinion of the court.

*4353. Municipal Court of Chicago, § *13*—allegations not requiring denial.*A statement that a deficiency decree was entered in a foreclosure proceeding for a certain sum, which is the amount of the damages sustained by the plaintiff by reason of the defendant’s not erecting a building in accordance with a contract and the conditions of a bond, does not constitute a statement of fact, such as to require denial in an affidavit of merits under the procedure in the Municipal Court.

4. Municipal Court of Chicago, § *13*—matters of conjecture.*Where the statement of claim as filed in the Municipal Court alleged that if a certain building had been erected the property would have been of sufficient value to have satisfied a certain note and costs and expenses, it is merely indulging in conjecture and does not set forth a fact requiring denial in an affidavit of merits.

5. Debt, action of, § *21*—improper evidence of damages.*In an action on a bond conditioned to erect a building on real estate to a certain value, the admission of the deficiency decree to establish the amount due is *held*erroneous, as not constituting the measure of damages.