Newlan v. Dunham

Citations

• 60 Ill. 233

Syllabus

<p>1. Pleadings — evidence—variance. In a case where an instrument in writing is not declared on as the cause of action, it may, nevertheless, be read in evidence, although it may vary from the averments in the declaration, if it tends to prove the issue.</p> <p>2. Mistake — measurement of property sold. Where a party sold a quantity of hay to another, to be paid for at an agreed price per ton, in a particular mode, when the quantity should be ascertained by persons they might choose, and persons were selected and the amount determined and reported by them: Udd, on a trial in' a suit for a breach of the contract, that the defendant could not prove that the persons selected had made a mistake in ascertaining the amount, hut their determination might be questioned for fraud. Fraud in an award may be shown either at law or in equity, but mistake is cognizable only in chancery.</p> <p>3. Even if a mistake could be corrected in an action at law, it would have to appear that the persons making the mistake were misled, deluded, or misapprehended the facts.</p> <p>4. Fuaud — evidence. Where the evidence is admitted as to the basis on which such a calculation is made, the presumption is that it was considered by the jury, and that they determined whether there was so gross a mistake as showed a fraud on the part of the referees.</p> <p>5. Evidence as to-value. It is not error to admit evidence of the value of the property sold, at or near the place of delivery, but not at distant points.</p> <p>6. Same — basis of calculation. Although a witness may not be required to make a calculation of the number of tons of hay in stack, he may be required to give the basis upon which it was made. If the intention was to show that he was unable to make the estimate, he could be asked if he could make it. »</p> <p>7. Checks — stomps—objections not urged on the trial. Where checks were offered in evidence that had been tendered under the contract, lnjt did not liave attached the required re