Phelan v. Andrews

• Citation: 1869 WL 5479,52 Ill. 486
• Parties: WILLIAM PHELAN et al.v.SAMUEL L. ANDREWS et al.
• Decision Date: 30 September 1869
• Court: Supreme Court of Illinois

52 Ill. 486

1869 WL 5479 (Ill.)

WILLIAM PHELAN et al.

v.SAMUEL L. ANDREWS et al.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Henry county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

The opinion states the case.

Mr. D. MCCULLOCH, for the appellants.

Mr. B. C. COOK, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought to recover damages for an alleged breach of a contract for manufacturing two steam boilers. The declaration contains two special counts on the contract, and to it the plea of the general issue was filed. On the trial, plaintiff offered the contract in evidence, and it was excluded under the first count, but was admitted under the second.

It is urged the court erred in admitting the contract in evidence, as it is claimed there was a material variance between the contract described and the contract read in evidence. The declaration avers the boilers “were intended for driving a grist mill, at Annawan, in the county of Henry, and State of Illinois,” while the contract is silent as to the purpose, or place where they were to be used. In this no variance is perceived. There is no averment that the contract states they were to be so used, and hence there can be no variance. There could be no variance unless the contract declared upon varied from that offered in evidence in a material matter, unless it was set out in hæc verba. In this case it is only set out in substance; and, had the averment been that it was a part of the contract, it would be immaterial.

Nor do we perceive any substantial difference between the averment that the boilers “should be built and manufactured in a first class manner,” and that “the work should be done in a first class manner.” The meaning is the same, and the declaration only purports to give the substance, and not the language of the agreement.

The same is true of the averment that, in consideration of the manufacture, sale and warranty of the boilers, plaintiff agreed to pay $2400, while the contract says the defendants were to build two steam boilers, with a mud receiver, for $2400. It it a well recognized rule of law that, when a manufacturer furnishes his wares, they shall be reasonably suited to the purpose for which such articles are designed, and shall be skillfully and properly constructed. To this extent the law implies a warranty. In averring a warranty, the pleader only stated the substance of the agreement.

As we understand it, a mud receiver is a part and a necessary portion of the boilers. If so, then there was no variance. If, however, it is no part of the boilers, there was a variance, as the contract would then be incorrectly described.

It is also objected that there is a variance as to the mode of payment. The declaration avers that plaintiffs were to pay $2000 on the completion of the boilers, and $400 on June the 1st, 1867, with ten per cent interest. By the contract, plaintiffs were to pay $2000 cash, at the shop of defendants, on completion of the work, “and give a lien note for $400, payable June 1st, 1867, with ten per cent interest, payable at Second National Bank, Peoria.” The law requires the debtor to seek his creditor for the purpose of making payment, and hence the statement that appellees agreed to pay $2000 on the completion, was the same in substance as an agreement to pay at the shop of appellants, as that was their place of business. But the terms and conditions of the contract are only...