Keiser v. Topping

Mr. Justice Scholfield delivered the opinion of the Court: We are of opinion, from the evidence in the record before us, that the contract between the Hughes &AA7hvte Eoof Tile Company and appellees did not constitute a sale of the seventy squares of tile. It was, in fact, a contract giving appellees the right of possession and control of the sale of this tile, for the purpose of enabling them to appropriate so much of its proceeds to the payment of their debts as should be necessary for that purpose, and nothing more. The written instrument executed by the superintendent of the company, spoken of as a bill of sale, shows that the subject of the contract was, “two car loads of tile, seventy squares, or sufficient quantity to fill the order” (which the superintendent then had,) “from Messrs. E. Harrison & Co., of Irondale, Mo.;” and it is therein further expressly said : “The tile now being in our yard, and to be shipped to Messrs. E. Harrison & Co., Irondale, Mo., as soon as cars arrive to .take it away.” ; Appellees did not surrender the note which they held against the company, or give any credit thereon, or on the account which they held against the company, nor were they to do so until they received the proceeds of the sale of tile. It is evident that, if the tile had been destroyed, or no sale of it effected, without the fault of appellees, the loss must have been borne by the company. As between the parties themselves, we see no objection to carrvino; the contract out according to their intentions, and no question of the rights of creditors or purchasers in good faith, is before us. Do, then, the proofs sustain the allegations in the first count of the declaration ? It was said, in Wheeler v. Reed et al. 36 Ill. 85, “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 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 Greenlf. 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.” The issue here was, whether the defendant promised to pay the debts, in consideration that plaintiffs promised to release their claim to the property. As between the parties, no actual manual delivery of the property was necessary. Possession, constructively, was where the contract placed it. We think the evidence on behalf -of plaintiffs sustains the issue substantially, and that there was, therefore, no material variance between the allegations and proofs. We do not feel called upon to review the evidence. It was conflicting, and we are unable to say that there was a decided preponderance against the verdict. The judgment is affirmed. Judgment affirmed.