Gifford v. Bracey, 205 Ill. App. 633 (1917)

May 29, 1917 · Illinois Appellate Court · Gen. No. 22,328
205 Ill. App. 633
John C. Gifford, Appellant, v. Smith H. Bracey, Appellee

John C. Gifford, Appellant, v. Smith H. Bracey, Appellee.

Gen. No. 22,328.

(Not to he reported in full.)

Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Affirmed.

Opinion filed May 29, 1917.

Rehearing denied June 11, 1917.

Statement of the Case.

Action by John C. Gifford, plaintiff, against Smith H. Bracey, defendant, to recover on a contract for the purchase of a bond. From a judgment for defendant, plaintiff appeals.

Miller, Starr, Brown, Packard & Peckham, for appellant.

F. L. Salisbury and M. Marso, for appellee.

Mr. Justice McGoorty

delivered the opinion of "the court.

*634Abstract of the 'Decision.

1. Sales, § 323 * —what constitutes variance where performance pleaded. In an action to recover on a contract by defendant to purchase a bond, where plaintiff pleads performance, he must prove performance as alleged and cannot recover on a waiver of performance.

2. Sales, § 323*—when waiver of performance must be pleaded. Waiver of performance of a contract must be pleaded, when relied upon in an action to recover on a contract of sale.

3. Sales, § 329*—when evidence is insufficient to show performance of contract for sale of bond. In an action to recover on a contract for the purchase of a bond in which the plaintiff pleads performance, where the evidence shows neither an actual offer by plaintiff to make delivery of the bond to defendant nor to leave it in defendant’s possession, but shows that plaintiff retained it and did not make a formal tender of it. until after he had commenced suit, performance is not shown.

4. Sales, § 325*—when burden of proof is on plaintiff. In an action on a contract for the purchase of a bond, the burden is on the plaintiff alleging performance to prove performance on his part.