William Burnham Woods

“ Whenever it shall be alleged that a party has been so misled, the fact shall be proved to the satisfaction of the court in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.' The answer of the plaintiffs in error denied that the contract provided for the delivery of the iron in Milwaukee, and averred that the iron was to be delivered at Coplay. ”

“ The cases we have cited are conclusive against the contention of the plaintiffs in error. The jury has found that the iron was not of the quality which the contract required, and on that ground the defendant in error, at the first opportunity, rejected it, as he had a right to do. ”

“ The court refused the charge, but instructed the jury that, in determining what weight as an admission the complaint should have, they might consider the fact that the allegation in relation to the quality of the iron in question was made on information and belief. ”

“ Lombard, 18 Pick. 57. The purchaser has a right to rely upon the undertaking that the article is of the kind or quality ordered, and to presume it to be true that the article is the one or kind ordered. ”