Opinion of the Court.

more minute and rather fuller than the description in the declaration, but the agreement contains all that is found set out in substance in the declaration, and this action being only for the breach of warranty, there was not a variance that should have excluded the contract. This is not like a suit on a note where a recovery is sought for its non-payment. There the plaintiff must show time, place, and the manner in which payment was to be made, and negative a performance, and there a misdescription in the declaration is held to constitute a variance. Mere inducement is not required to be set out with the same degree of particularity as the contract itself. And this was but inducement to show the consideration for the contract of warranty. Had there been a misdescription of the terms of the warranty, then there would have been a fatal variance. But it was truly set out, and was sufficient. There was no error in admitting the agreement in evidence.

It is next objected that the court below misdirected the jury as to the measure of damages; that the recovery for loss of time, and the expense of repairing the boilers, and the increased quantity of fuel necessary to run the mill, were remote damages, and not properly recovered. In this case the warranty was, that the work should be first class; and if, when applied to use, it proved defective, and the boilers leaked, or if they required more fuel to generate steam than such boilers, when properly constructed, usually do, then the warranty was broken, and the rule of law is, that appellees were entitled to recover all damages which were the natural and proximate result of the breach of the warranty. And it is clear the expense of repairing them, and the loss of time while so engaged, would be both natural and proximate. In such a case the reasonable value for the use of the boiler, lost by it standing idle during the time the repairs were being made, would be proximate.

In the case of Strawn v. Cogswell, 28 Ill. 457, a case similar in principle to this, it was said that, "If, after receiving the work, it be found to be defective, the owner may recover a sum of money sufficient to alter the defective machinery to what it

Syllabus.

*

should have been under the contract, with a reasonable compensation for its use for the period of time necessary to make the change. This is the damage he has sustained, and is the true measure." The cases of Green v. Mann, 11 Ill. 613; The Sangamon & Morgan Railroad Co. v. Henry, 14 Ill. 156, and Chicago & Rock Island Railroad Co. v. Ward, 16 Ill. 522, announce the same rule.

It follows, from what has been said, that there was no error in giving the instructions for appellees, or in refusing instructions asked by appellants. The judgment of the court below is affirmed.

Judgment affirmed.

GEORGE METZ et al.

v.

JACOB ALBRECHT.

1. CONTRACT OF SALE-time of payment. Under a contract for the sale and delivery of chattels, which is silent as to the time of payment, the inference is, the money is to be paid on delivery of the property sold.

2. SAME-construction of a contract, in that regard. A contract was as follows: "I, the undersigned, Jacob Albrecht, of Ohio Town, have to-day sold 10,000 bushels good barley, according to samples Nos. 1 and 2, to Metz & Stege, in Chicago, at one dollar per bushel. I promise to deliver the above quantity in such a manner that one thousand bushels shall be deliv ered each week:" Held, there being no time specified when the money should be paid, the proper construction is, the delivery of the grain and the payment of the money were concurrent.

3. SALES-readiness of purchaser to pay. In case of a sale of goods to be paid for on delivery, in order that the buyer may recover damages for non-delivery, it is incumbent on him to prove he was ready to receive and pay for the goods as delivered, and upon request for payment. This is the doctrine applicable to all cash sales.

Syllabus. Statement of the case.

4. SAME-where two qualities of goods are sold, and the quantity of each not specified. Where a party sold and agreed to deliver "ten thousand bushels barley, according to samples Nos. 1 and 2," it was held, Nos. one and two barley, the copulative conjunction being used, is the kind spoken of, and the quantity of each not being specified, it was at the option of the seller how much of each kind he would deliver.

5. ALLEGATIONS AND PROOFs-must correspond. In every case, a party suing must recover on his allegations and proofs. So, in an action to recover damages for non-delivery of grain purchased by the plaintiff, where the contract provided for the delivery of the grain in installments at different times, if the declaration was framed on the theory that payment was to be made only on the delivery of the whole quantity bought, the plaintiff can not recover upon a contract under which payment was to be made on the delivery of each installment of the grain.

6. PLEADING CONSTRUCTION THEREOF. Upon a contract for the sale of ten thousand bushels of barley, to be delivered in such manner that one thousand bushels should be delivered each week, in an action, by the buyer, for non-delivery of the grain, it was alleged in the declaration that the plaintiff had "promised the defendant to accept and receive the said goods, and to pay him for the same at the price aforesaid,” “and although said time for the delivery of said goods as aforesaid, hath long since elapsed, and the plaintiff has always been ready and willing to accept and receive the said goods, and to pay for the same at the rate or price aforesaid," yet the defendant had not, within the time stipulated, or at any time, delivered the grain, except a certain portion of it: Held, that the true meaning and legal effect of the count was, that payment was to be made on the delivery of the whole ten thousand bushels, and not on the delivery of each weekly install

ment.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was an action of assumpsit, the declaration in which contained several counts, but substantially alike, so far as concerns the questions arising thereon. The first count was as follows:

George Metz and Edward Stege, plaintiffs, complain of Jacob Albrecht, the defendant, who is summoned, &c., of a plea of trespass on the case on promises; for that whereas heretofore to-wit: on the twenty-fifth day of August, A. D.

Statement of the case.

1867, at Chicago, in said county of Cook, the said plaintiffs, at the special instance and request of the said defendant, bargained with the defendant to buy of the defendant, and the defendant then and there sold to the plaintiffs a large quantity of goods, to-wit: ten thousand bushels of barley-Nos. 1 and 2 according to sample, at the price of one dollar per bushel, to be delivered by defendant to the plaintiffs at Chicago, aforesaid, in such quantities that the said plaintiffs should receive of the said barley one thousand bushels per week, for the ten weeks next after the making of said contract, as aforesaid, until the full amount of said barley should be delivered, as aforesaid, and in consideration thereof, and that the plaintiffs, at the like special instance and request of said defendant, had then and there promised the defendant to accept and receive the said goods and to pay him for the same at the price aforesaid, he, the defendant, promised the plaintiffs to deliver the said goods to the plaintiffs, as aforesaid, and although the said time for the delivery of the said goods, as aforesaid, hath long since elapsed, and the plaintiffs have always been ready and willing to accept and receive the said goods, and to pay for the same at the rate or price aforesaid, to-wit, at Chicago, in the said county of Cook, whereof the said defendant hath always had notice, yet the defendant, not regarding his said promises, did not nor would, within the time aforesaid, or at any time afterwards, deliver the said goods, or any part thereof, for the plaintiffs at Chicago, aforesaid, or elsewhere, except the sum of eight hundred bushels, and has otherwise wholly neglected and refused to deliver said goods, or comply with his said agreement, whereby the plaintiffs have lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to them from the delivery of the said goods to the said plaintiffs as aforesaid, to-wit: at Chicago, in said county of Cook, and to the damages of said plaintiffs of four thou sand dollars, and therefore bring suit."

Opinion of the Court.

One of the questions in the case arises on the proper construction of the declaration-whether its legal effect is, that payment was to be made for the barley only on the delivery of the whole ten thousand bushels sold, or upon the delivery of each weekly installment.

Mr. H. BARBER, for the appellants.

Mr. MILTON T. PETERS, for the appellee.

Mr.CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, brought to the Cook circuit court, by George Metz and Edward Stege against Jacob Albrecht, for damages occasioned by the failure of the defendant to deliver to plaintiffs a certain quantity of barley he had contracted to deliver to plaintiffs. The pleas were, non assumpsit and set-off. There was a verdict and judgment for the defendant to the amount of his set-off, to reverse which plaintiffs bring the record to this court.

The principal points are made upon the instructions. Some controversy is made upon the construction of the contractthe defendant alleging he sold the barley for cash on delivery; the plaintiffs, that the sale was on credit.

It appeared, from the plaintiffs' books, there was due the defendant for barley delivered by defendant, under the contract, eight hundred and seventy-one dollars ninety cents.

This was the contract: "I, the undersigned, Jacob Albrecht, of Ohio Town, have to-day sold ten thousand bushels good barley, according to samples Nos. 1 and 2, to Metz & Stege, in Chicago, at one dollar per bushel. I promise to deliver the above quantity in such a manner that one thousand bushels shall be delivered each week."

It appears that defendant had, prior to this contract, delivered quantities of barley to plaintiffs, for which they had a settlement, and they testified on the trial that they were to