Goulding v. Skinner

18 Mass. 162

Opinion

The cause was continued nisi for advisement, and at the following March term, at Concord, the Court granted a new trial, on account of variance between the warranty alleged m the declaration and the contract proved.¹

1

See Robbins v. Otis, post, 368; Hastings v. Lovering, 2 Pick. 214; Commonwealth v Whitmarsh, 4 Pick. 233; Baylies v. Fettyplace, 7 Mass. R 325; United States v. Lakeman, 2 Mason, 229. Evidence that the defendant sent treasury notes by mail, does not support an allegation that he sent cash, Frouguet v. Headley, 3 Conn. R. 534. A declaration on a promise to deliver good merchantable wheat is not supported by evidence of an agreement to deliver good second sort of wheat. Anon. 1 Ld. Raym. 735. So, an agreement alleged to be for the sale to the plaintiff of merchandizable skins varies from an agreement for the sale of merchandizable calf skins. Anon. Buffer’s N. P. 145. So a contract to deliver soil or breeze varies from a contract to deliver soil only; soil and breeze being different things. Cooke v. Munstone, 4 Bos. & Pul. 351; Clarke v. Munstone, 5 Esp. R. 239. An allegation in a declara» tian, that the plaintiff lent a horse, is supported by evidence that he lent a mare. Ware v. Juda, 2 Car. & P. 351. So, evidence of the trover and conversion of a gelding will support a count in trover for a horse. Gravely v. Ford, 2 Ld. Raym. 1209, and cases cited. An allegation of a contract for the delivery ot gum Senegal is supported by evidence of a contract for the delivery of rough gum Senegal, coupled with evidence, that all gum Senegal, on its arrival in England, is called rough. Silvery v. Heseltine, 1 Chitty’s R. 39. A justification by the lord of a manor, under a custom, that the lord should have the best beast on the tenant’s death, is not proved by evidence, that he ought to have the best beast or good. Adderly v. Hart, cited 3 Stark. on Ev. 1549. See also Hockin v. Cooke, 4 T. R. 314. Harrington v. Morris, 5 Taunt. 228; Kearney v. King, 1 Chitty’s R. 28, and 2B. & Ald. 301; Savage v. Maguire, 1 Batty, 280 Sproule v. Legge, 2 Dowl. & R. 15; S. C. 1 Barn. & C. 16; Thornton v Kempster, 1 Marsh. 355; Parker v. Palmer, 4 B. & Ald. 387.