Lassen v. Mitchell

Citations

• 41 Ill. 101

Syllabus

<p>1. Pleadings —proof of averment. It is a well established rule that all material averments in a declaration must be proved to sustain a verdict. The omission of an averment may, in some instances, be cured by a verdict, but where an averment is made material to a recovery, and the evidence is preserved in the record, from which it appears the averment was not sustained, no such intendment can be made.</p> <p>2. Same — averment a/ndt proof. Where it is averred in the declaration that the plaintiff was ready and willing to perform his part of the contract, and he proceeds, for a breach of the contract by the defendant, to recover, he must prove a readiness and willingness to perform on his part. On the purchase of grain, to be delivered by a specified day, unless sooner demanded, it is as much the duty of the seller to deliver on the day, as for the other to receive and pay the contract price. A notice that plaintiff was ready to deliver, may prove that he was willing, but not that he was prepared with the grain and able to perform his part of the contract.</p> <p>3. Contract—rescission of. Where a seller, before the time expires for the delivery of the grain sold, notifies the purchaser that, unless he places in his hands a deposit to cover a decline in the price of the grain, he will sell it, and afterward does sell it, and notifies the buyer of the fact, he thereby rescinds the contract, and cannot afterward renew it, without the concurrence of the purchaser. If he rescinded the contract without a sufficient cause, he released the other party, hut, even if he had a sufficient cause, he could not recover more than he lost on the sale of the grain.</p>