Wheeler v. Reed

Citations

• 36 Ill. 81

Syllabus

<p>1. Allegations and proofs—what constitutes a variance. A variance is understood to be a substantial departure from the issue in the evidence adduced, and must be in some matter which, in point of law, is essential to the charge or claim.</p> <p>% The rule governing actions upon contracts is, that if any part of the contract proved varies materially from that which is stated in the pleadings, the variance will be fatal, a contract being an entire thing and indivisible.</p> <p>3. Where a party declares upon a special contract, the proof and the aliegations must correspond — it is essential to prove the contract as declared on with certainty ; not such certainty, however, as amounts to absolute preciseness, or certainty without any doubt, but certainty to a certain intent in general—in other words, the contract must be substantially proved. The plaintiff, in proving his declaration, need not follow the precise form of words in which the contract was made, but it will be sufficient if he state its true legal effect and operation — he is not bound to support his declaration literally, hut substantially.</p> <p>4. If the defendant can protect himself by the judgment rendered in the given case, if the same rights should come again in controversy, the demand of the rule of law that the allegations and proofs must correspond, is fully answered.</p> <p>5. This was an action for the breach of an alleged warranty in the sale of a lot of flour. It was averred that the contract was for flour of a quality equal to flour known as Albion Mills flour in the New York market at a designated time. The proof was, that the seller represented to the purchaser that the flour was up to the grade of Albion Mills flour selling in New York at the time designated, and was of the same grade as the Albion Mills flour which stood so high and with which all are acquainted. This proof was held to support the allegation as to what the contract was.</p> <p>6,. Warranty on a sale of personal property