Menifee v. Higgins

Citations

• 57 Ill. 50

Syllabus

<p>1. Evidence—suppositions. Where a witness in his deposition testifies to mere conjectures and suppositions, it is error to admit such evidence to the jury when objected to by the opposite party.</p> <p>S. Allegations and pboofs. An averment in the declaration, that defendant agreed to pay plaintiff five per cent on the amount for which he should sell a mill of defendant, whatever it might amount to, is not sustained by evidence that defendant agreed to pay plaintiff five per cent, if he would sell the mill for five thousand dollars. In this there is a fatal variance between the contract declared upon and that proved.</p> <p>3. Common Counts—proof under. Where a common count alleged an indebtedness of five hundred dollars for commissions on the sale of land and mill, such a count is not sustained by evidence of an exchange of the mill and land for other property. Had the special agreement been fully performed, and had nothing remained to be done but to pay the money due on the agreement, then a recovery might have been had under the common count, hut plaintiff having failed to perform his part of the agreement, he can not recover.</p>