Seibert v. Bach

Citations

• 36 Ill. 195

Syllabus

<p>1. Variance between proof and declaration. Where the first count in a declaration averred that the plaintiffs bought of the defendants three thousand pounds of wool, at seventy-eight cents per pound, and the second, that the defendants had in their factory a large quantity of wool supposed to he three thousand pounds, and that the plaintiffs bought the same at seventy-eight cents per pound, and the proof was, that the defendants did not agree to sell plaintiffs any particular quantity of wool, nor all the wool in their factory, but only what they could spare, reserving enough to supply their own wants: mid, there was a fatal variance between the contract proved and that laid.</p> <p>2. Instruction—should have required proof of contract as declared upon. In this state of the pleadings it was error in the court to instruct the jury that the plaintiffs were entitled to recover, on proof merely that they had “bought wool” of the defendants, which the latter had refused to deliver. It was necessary for the jury also to find that the plaintiffs had purchased under such a contract as they had declared upon, that is, a quantity definite either from its weight or locality, and not dependent upon a contingency.</p>