Nathan Clifford

“ Our conclusion is, that the allegations of the special count, and the proofs given in evidence, were substantially the same, or, in other words, that the differences between them, if any, were not of a character which could have misled the defendants at the trial, and therefore the objection must be overruled.
II. Evidence was also introduced by the plaintiffs showing that the defendants drew on them for the whole amount of the purchase-money, in a sight draft, and that they paid the draft, as given in evidence, when it was presented. ”

“ Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. ”

“ Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved.
1. Allegations of fact in the pleadings, affirmed on one side and denied on the other, must in general be tried by a jury, and the purpose of the rule which requires that the allegations and the proofs must correspond, is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. ”

“ Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex equo et bono, he ought to refund. ”

“ Recent statutes in the States also confer a liberal discretion upon courts in allowing amendments to pleadings, and those statutes, together with the change they have superinduced in the course of judicial decision, may be said to have established the general rule in the State tribunals that no variance between the allegations of a pleading and the proofs offered to sustain it, shall be deemed material, unless it be of a character to mislead the opposite party in maintaining his action or defence on the merits. ”

“ Irrespective of those statutes, however, no variance ought ever to be regarded as material where the allegation and proof substantially correspond. Contract in this case was executed in midwinter, when the navigation was closed, and both parties knew that the flour could not be transported until the navigation opened in the spring. 'Free on board the steamer at Neenah' meant that the defendants should deliver the flour on board the steamer without charge to the plaintiffs. ”

“ Towne & Washburne, of Boston, Massachusetts, bought of Nash & Chapin, of Milwaukee, Wisconsin, in February, 1863, a thousand barrels of flour, and paid for them by a sight draft. The flour was not delivered, and the purchasers, Towne & Washburne, aforesaid, brought assumpsit for the non-delivery. The declaration contained a special count, and also the common counts. ”

“ I. The declaration sets out the time of delivery to have been after the opening of navigation in the spring of 1863 (April 20th, 1863) , and before the 31st day of May, 1863. The utmost that can be said of the letter is, that inasmuch as the delivery must be on board steamer, the delivery should be within a reasonable time after the opening of navigation, which is a very different period. ”

“ On the trial, the plaintiffs offered in evidence a letter from the defendants to the plaintiffs, dated at Milwaukee, February 5, 1863, as follows:
'Your Mr. W. left here yesterday, and before going off we sold him one thousand barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured, . . . ”