Donati v. Cleveland Grain Co.

Citations

• 221 F. 168
• 137 C.C.A. 68
• 1915 U.S. App. LEXIS 1300

Syllabus

<p>1. Courts <@=>322—Jurisdiction of Federal Courts—Pleading—Necessity of Proof of Allegations.</p> <p>In an action of assumpsit in a federal court, a plea of non assumpsit does not put in issue the jurisdictional allegations of the declaration as to the citizenship of the parties, and plaintiff is not required to prove the same.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 876-881, 8S7; Dec. Dig. <@=>322.]</p> <p>2. Pleading <@=>388—Variance—Immateriality of Allegation.</p> <p>In an action of assumpsit on a contract for the sale of corn for future delivery, the declaration alleged the making of the contract, that plaintiff in reliance thereon purchased the corn and was at all times ready to fulfill the contract, and tendered delivery, which, defendant refused to accept, etc. The proof showed that plaintiff purchased the corn before the date when the sales ticket formally evidencing the sale was signed by the parties. Held, that there was no variance which precluded plaintiff’s re covery, as the allegation that plaintiff purchased the corn in reliance on the contract was immaterial.</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1305-1308; Dec. Dig. <@=>388.]</p> <p>3. Sales <@=>388—Breach of Contract—Instructions.</p> <p>Instructions considered and approved in an action for breach of a contract by which defendant purchased corn for future delivery.</p> <p>[Ed.. Note.—For other cases, see Sales, Cent. Dig. § 1108; Dec. Dig. <@=>388.]</p> <p>4. Contracts <@=>313—Breach—Accrual of Bight of Action.</p> <p>A positive refusal to perform a contract, although entire performance is not due, gives the other party a right of action for the breach at once.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1279; Dec. Dig. <@=>313.]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>