Wheeler v. Reed

• Decision Date: 30 April 1864
• Citation: 1864 WL 3104,36 Ill. 81
• Parties: CALVIN T. WHEELERv.JOSIAH H. REED, HORACE A. HURLBUT AND SYLVESTER S. BLISS.
• Court: Illinois Supreme Court

36 Ill. 81

1864 WL 3104 (Ill.)

CALVIN T. WHEELER

v.JOSIAH H. REED, HORACE A. HURLBUT AND SYLVESTER S. BLISS.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

The case is sufficiently stated in the opinion of the court.

Scammon, McCagg & Fuller, for appellant.

Gallup & Hitchcock, for appellees.

BREESE, J.

This was an action of assumpsit for a breach of warranty on a sale of flour, and a verdict for the plaintiffs. The case is brought here by appeal, and appellant makes these points: That the evidence did not sustain the allegations in the declaration; that there was no warranty of the quality of the flour made by the defendant; that if any warranty was made, it was made by defendant on behalf of his principal, and, therefore, he was not bound himself personally; there was no sufficient proof of the amount of damages, if any, which the plaintiffs were entitled to recover.

Upon the first point, the proof of the contract rested on the testimony of a single witness, Mr. Rumsey, the broker, who made the contract for the plaintiffs with the defendant. The sale was verbal, and so was the alleged warranty.

The declaration contains forty-two counts, in each of which, the contract is stated with shades of difference in the terms in which it was alleged to have been made. The court excluded the testimony of the witness, on the ground of variance as to nineteen of the counts, so that the only inquiry is, Did the evidence fit any of the remaining counts from one to eighteen inclusive, and from thirty-three to forty-two both inclusive?

Without being unnecessarily tedious, we will consider the ninth count, in which it is alleged as the contract that the flour was of a quality equal to flour known as Albion Mills flour in the New York market in the fall of the year 1860.

The proof was, that the defendant represented to the witness that the flour purchased was up to the grade of Albion Mills flour selling in New York in the fall previous,¹ and was of the same grade as the Albion Mills flour, which stood so high, and with which we are all well acquainted. The witness further stated, after the report came back that the flour was not so good as expected, the defendant did not deny these representations, but still claimed that the flour was as good. He said, in effect, he did not believe the report as to the bad quality of the flour in New York to be correct.

Now, when it is remembered the flour was purchased in April, 1861, for the New York market, and that there was but one grade or quality of Albion Mills flour ever exhibited in the Chicago market, that its brand had obtained notoriety in the flour markets of the continent, can it be consistently alleged the proof did not sustain the allegations? But this is not the only proof--there is very much of it spread through the record. For instance, the witness said he had an interview with the defendant, at which he named a price, and witness questioned him as to the quality and condition of the flour, when defendant assured him that it was the same quality of the Albion Mills flour with which we were all acquainted, and which stood so high in this market and New York. Witness was particularly careful to know from defendant that it was the same grade of flour. Again, defendant assured witness that the flour was of the same quality and grade with which we were all familiar as Albion Mills flour, and which stood so high in New York, and in this market, and it was on that assurance, and on that only, that witness bought all the flour without examination.

The witness, a commission merchant in the city of Chicago, was subjected to a long direct, and to a protracted and searching cross-examination, before a jury of merchants, and was stating to the best of his recollection, the terms of a contract which had been made more than two years previous. It would be hardly fair to take detached parts of testimony given under such circumstances, and insist that it does not prove the contract as alleged, but the whole must be taken together, and from the mass the conclusion reached.

The rule governing actions upon contracts is correctly stated by appellant, that if any part of the contract proved varies materially from that which is stated in the pleadings it will be fatal, a contract being an entire thing and indivisible; and where a plaintiff declares upon a special contract, the proof and the allegations must correspond, not, as he contends, precisely, but substantially. 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. Stephen on Pl., 107, 108; 1 Greenl. on Ev., 79. And the reason is, that the defendant may not be subject to another action and recovery for the same cause set out with more certainty and particularity in another suit. If this defendant could protect himself by this judgment and recovery, if the same rights should come again in controversy, the demand of this rule of law is fully answered. Does any one doubt, can any one entertain any other opinion, than that this recovery can be pleaded in bar, in all time to come, to another action involving the same claim? No one doubts this.

Chitty says, treating on this head, that contracts must be proved as laid; a party is not compelled to follow the precise form of words in which the contract was made; it suffices if he state its true legal effect and operation; and this applies to verbal as well as to written contracts. 1 Chit. Pl., 304. And he is not bound to support his declaration literally, but substantially. Id., 316. In this view, compare the contract alleged with the contract proved, and is not the legal effect of the one alleged and the one proved the same? The contract alleged was, to deliver flour of a certain well known brand and description standing high in the Chicago and New York markets, and with which all dealers were well acquainted.

We are of opinion the proof fully sustains the substance of the allegations. We have looked into the cases cited on this point. The case of Berry v. Savage et al., 2 Scam., 261, was where the plaintiff had declared upon a special contract to deliver nineteen hogs, and the proof was that defendant was to deliver all he could spare. The case of Vancourt v. Bushnell et al., 21 Ill., 624, was a suit to enforce a mechanic's lien; in the petition it was alleged the money was to be paid in April, and it appeared in proof that it was to be paid on the delivery of the material. In Taylor v. Beck, 13 Ill., 376, which was an action upon a contract to deliver an entire lot of broom brush, it was held that, to instruct the jury that if they believed from the evidence that the plaintiff had substantially performed the agreement, they should find for him, was erroneous, and on the plainest principle, that a contract is to be performed in full and not to be enforced in fragments, and as an illustration, a contract to deliver one thousand barrels of flour is not performed by proof of the delivery of five hundred barrels. A party has a right to insist upon a strict fulfillment of his contract. We do not perceive any analogy in the case cited from 4 Gilman, 40, and the one before us. That decides, when a written instrument is not the foundation of the action, but is merely brought forward to sustain an allegation not referring to it expressly, a variance will not be fatal, if the substance of what is alleged be proved.

In the case from 1 Johns., 105, it was relied on in the argument, that as the plaintiffs proceeded on the ground of fraud, it was sufficient if the fraud was substantially made out, without inquiring whether the contract was proved specifically as laid in the declaration; but the court ask, “How can it be determined that there was any fraud in the transaction, without knowing precisely what was the agreement between the parties? It is as essential to prove the contract as declared on with certainty, in that case as well as in any other.”

“Certainty,” as here used, means, not absolute preciseness or certainty without any doubt, but certainty to a certain intent in general--in other words, the contract must be substantially proved; and this is the doctrine of all the books.

In the case of the Oneida Manufacturing Society v. Lawrence et al., 4 Cow., 440, the declaration, which was upon a warranty of cotton, alleged that it was represented to be good merchantable cotton, free from dirt and filthy matter. The proof was, that it was good upland cotton, and that the sample was true, or that it was prime upland Georgia cotton; it was held there was no variance. Prime upland Georgia cotton had a well known reputation in the market as good merchantable cotton, free from dirt and filth.

The second point made by appellant is, that there was no warranty of this flour by the defendant--that what he said was merely an expression of his opinion as to kind and quality.

Whether or not certain words or declarations amount to a warranty is a question of intention, and so the court instructed the jury on behalf of the defendant. The court told the jury, in the language of the defendant's counsel, that unless they...