Davidson v. Johnson

31 Ill. 523

Opinion

Mr. Chief Justioe CatoN

delivered the opinion of the Court.

We are constrained to say that here is a variance /between the declaration and the proof. In describing the contract on which the action is brought, the second count of declaration states that the plaintiif agreed to deliver to the defendant, from one hundred to one hundred and ten stock hogs, at two dollars and twenty-five cents per hundred pounds, toward the payment for the fat hogs, and the third and fourth counts state the number to be one hundred and more stock hogs. And these are the only counts which, approximately, set out the contract. The proof is, that he was to deliver one hundred stock hogs — no more and no less. That this is materially variant from the contract set out in the declaration admits of no question. It is simply self-evident, and admits of no argument, unless one hundred, and more than one" hundred, are the same.

The judgment is reversed, and the cause remanded.

Judgment reversed.