Mr. Presiding Justice Pamdelivered the opinion of the court.
4. Sales, § 244*—when, affidavit setting up warranty properly stricken. In an action on a written contract which contains no warranty, a motion to strike an amended affidavit of merits, the only issue presented by which is as to whether or not plaintiff had entered into a warranty, is properly allowed. • 5. Damages, § 227*—when motion for assessment by jury made too late. A motion, in an action on a contract, to have the damages assessed by the jury is too late when not made until after the court had assessed plaintiff’s damages and entered judgment. 6. Costs, § 67*—when damages allowed for vexatious appeal. Evidence examined and held to show that an appeal was prosecuted merely for delay, and ten per cent, damages allowed.