Home Flax Co. v. Beebe

Citations

• 48 Ill. 138

Syllabus

<p>1. Variance—between instrummt offeredin evidence arid copy attached to declaration—when immaterial,. This court has repeatedly said, that it is no objection to an instrument in writing, offered in evidence, that it varies from the copy of the same attached to the declaration — such instrument corresponding with the allegations of the declaration.</p> <p>2. Pleading at law —■when execution of instrument sued on is denied. A party is precluded, on the trial, from denying the execution of the instrument sued upon, unless his plea denying it is verified by affidavit.</p> <p>3. Contracts — construction of a particular contract. In an action upon the guaranty, alone, contained in the following agreement:</p> <p>“ Homexce, May 29th, 1865.</p> <p>“In consideration of the seed given by the Home Flax Co., to me, of 60 bushels of flax seed, the receipt of which is hereby acknowledged, I agree with them to sow said seed this season, 2-J bush, per acre, and to sell them all of the crop produced, straw and seed, from the said seed. All the straw and seed to be delivered, in good merchantable order, on or before the first day of November, 1865, to our agent in Momence, said Home Flax Co. agreeing to pay, for said straw, §8.00 per ton, and for the seed, the customary market rates when delivered, and guarantee 1£ tons per acre. Signed,</p> <p>“T. GRAY, Ag’t,</p> <p>“ ORSON BEEBE.”</p> <p>■Held: The construction of this agreement to be, that the Home Flax Co. would furnish the seed, buy the straw at the specified price, and the seed at the market price, and guarantee one and one-half tons of straw to the cultivated acre ; that plaintiff would properly prepare the ground, sow the seed, tend and husband the crop in a skillful manner, and deliver the product at the stipulated time and place.</p> <p>4. Same. That in such case, the proof showing that the crop was a failure, and the straw and seed worthless, it was not necessary that plaintiff should deliver, or offer so to do, such wor