Bell, J.
By ancient usage, the declaration upon an account annexed, has been sanctioned in this State, as it has been in Massachusetts; Hilton v. Burley, 2 N. H. Rep., 193; Rider v. Robbins, 13 Mass., 284, and the account annexed to the writ is allowed to supply the want of proper allegations in the body of the declaration. The account, when so annexed, is to be read and understood, as it would be if separate; and the question here is, what is in fact the meaning of a charge in an account of the form of this: A. B., Dr. to C. D., To — lbs. of castings at — cts., $--. It seems to us, that it is always understood to mean goods sold and delivered. By usage, which is the only law of speech, it might have meant goods lent, or goods contracted to be sold, or goods made to order, but we are not aware that there is any such usage. We understand, that, by usage, the words supposed to be omitted are “ sold and delivered by the plaintiff to the defendant.” “To — lbs. mill castings sold and delivered, &c., at — cts. per lb., $--.” The design of a declaration is to make known to the party and to the court; the claim made by the plaintiff; and to that claim and no other, the defendant is required to answer. The question is, then, not how the count might be construed, but how, according to the common use of the words, it would usually and naturally be understood. It is urged, that the words bargained and sold, or made by the plaintiff for the defendant at his request, may just as well be supplied, as sold and delivered, but the court would not suffer either to be sujjplied.
The want of a statement of the consideration of a promise is a capital defect in a declaration, not to be supplied by intendment, but by an amendment; and the ■ count upon an account annexed is holden to be good and sufficient, because by long usage the necessary words are understood; and our understanding is, that by that usage the words implied are “ sold and delivered.” It cannot be held, that any words may be imjffied which the plaintiffs case may be found to require, because if the declaration were expressed in the alternative, it would be bad : and it could not be better, if such alternative was implied. The question is not, what this form of declaration might bo un[407]*407derstood to mean, but what it has been understood to mean, according to the general usage and understanding; and we have not understood that it has been considered applicable to any other cases than those of sales.
The court charged the jury, that the defendant, if his order was for a casting merely, that is, unfitted, was entitled to have the casting in the state in which the founder leaves it; and was not bound to take, it, if the founder had caused, or permitted it to be fitted, without his order or consent; whether the work so done was injurious to it or not; and objection is taken in the argument chiefly because of the last clause. It is admitted, that the general principle is, that when a man orders an article made for him, he is not bound to take it, unless it is made according to his order, but it is said, if the article is made substantially according to the order, it cannot be refused for any trifling difference, which does not injure it, or affect its utility. It does not appear from the case, nor is to be fairly inferred, that the fitting which was objected to, was of such a trifling character as to come within the rule cited by the counsel, “ de minimis non curat lex” The casting was sent to a machine shop to befitted; and though the precise character of the work done does not appear by the case, there is no pretence, that it was regarded as trivial. The plaintiffs’ counsel, in his argument, admits their materiality, when he says, that without the fittings the wheel could not be used at all. What qualifications of the instructions, it might have been proper for the judge to have made, if it had appeared, or had been suggested, that the fittings were wholly immaterial and unimportant, is not material to be considered. As a disputed matter of fact it might have been properly left to the jury. The rules laid down by the court for the guidance of the jury are not either expected, or required to contain the limitations and qualifications, which would apply or •be required in every supposable case. It is enough, if they are stated with such qualifications, as the case in question calls for. A verdict will not be set aside for any error in the charge, unless it relates to a matter material in the case on trial. The charge was not that any work done to the casting without orders [408]*408would be enough to release the party who ordered it, but the charge was confined to the case before the court, “ if the founder caused or permitted it to he fitted without his order or consent.” This, as indeed the whole case, shows that the fitting was a material and important matter. And in that view the charge was equivalent to saying, that if the article was made in any material respect contrary to the order, the party was not bound to take it; and this we conceive to be the true doctrine of the law on the subject. That the question of the materiality of any thing done without or contrary to order, is a question for the jury, is too clear for discussion, if any such question arises in a case; but it is very apparent, that no question of that kind arose or was discussed, otherwise the evidence would have shown what was the amount and character of the work, called fitting. The question really in controversy, is shown by the instruction asked for by the plaintiffs, and the refusal of which is the last ground of exception. They asked the court, to charge, that any fitting of the wheel, or any work done upon it, without the defendant’s order, which would entitle him to refuse to receive it on that account, must be of a material character, and such as would injure it in some respect, or render it less valuable for the defendant, for the purposes for which he wanted it; and if the jury believed from the evidence, that the fitting did not injure the wheel, but in fact made it better, the defendant could not refuse to receive it, on that account. This shows, that the question involved, was not whether the unordered work was immaterial, but whether the casting could be refused, when the work done without orders did not injure the wheel, hut in fact made it better, If the work was so trifling as to be immaterial, “ de minimis,” this question could not arise. The great question of the case was involved in this desired instruction. Was the defendant bound to take an article, he had ordered, if it was not made agreeably to his orders, if the jury think, that the deviation from the orders did not injure the article, but in fact made it better ? If the rule contended for by the plaintiff exists, its application cannot be brought in question now for the first time; and we might reasonably expect the plaintiffs coun[409]*409sel to point to the case where any such principle is recognized; but none such is cited. It wonld establish the rule, that the choice of the kind and quality of an article ordered to be made rests with the workman who makes it, and not with the person who orders it, provided the article is not injured, but is in fact made better. A man would have no right to object to a brown coat, when he orders a black, if the brown coat is the better article ; nor to its being trimmed with gold lace, if it did not injure the coat, but in the opinion of the jury, in fact made it better.
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Bell, J.
By ancient usage, the declaration upon an account annexed, has been sanctioned in this State, as it has been in Massachusetts; Hilton v. Burley, 2 N. H. Rep., 193; Rider v. Robbins, 13 Mass., 284, and the account annexed to the writ is allowed to supply the want of proper allegations in the body of the declaration. The account, when so annexed, is to be read and understood, as it would be if separate; and the question here is, what is in fact the meaning of a charge in an account of the form of this: A. B., Dr. to C. D., To — lbs. of castings at — cts., $--. It seems to us, that it is always understood to mean goods sold and delivered. By usage, which is the only law of speech, it might have meant goods lent, or goods contracted to be sold, or goods made to order, but we are not aware that there is any such usage. We understand, that, by usage, the words supposed to be omitted are “ sold and delivered by the plaintiff to the defendant.” “To — lbs. mill castings sold and delivered, &c., at — cts. per lb., $--.” The design of a declaration is to make known to the party and to the court; the claim made by the plaintiff; and to that claim and no other, the defendant is required to answer. The question is, then, not how the count might be construed, but how, according to the common use of the words, it would usually and naturally be understood. It is urged, that the words bargained and sold, or made by the plaintiff for the defendant at his request, may just as well be supplied, as sold and delivered, but the court would not suffer either to be sujjplied.
The want of a statement of the consideration of a promise is a capital defect in a declaration, not to be supplied by intendment, but by an amendment; and the ■ count upon an account annexed is holden to be good and sufficient, because by long usage the necessary words are understood; and our understanding is, that by that usage the words implied are “ sold and delivered.” It cannot be held, that any words may be imjffied which the plaintiffs case may be found to require, because if the declaration were expressed in the alternative, it would be bad : and it could not be better, if such alternative was implied. The question is not, what this form of declaration might bo un[407]*407derstood to mean, but what it has been understood to mean, according to the general usage and understanding; and we have not understood that it has been considered applicable to any other cases than those of sales.
The court charged the jury, that the defendant, if his order was for a casting merely, that is, unfitted, was entitled to have the casting in the state in which the founder leaves it; and was not bound to take, it, if the founder had caused, or permitted it to be fitted, without his order or consent; whether the work so done was injurious to it or not; and objection is taken in the argument chiefly because of the last clause. It is admitted, that the general principle is, that when a man orders an article made for him, he is not bound to take it, unless it is made according to his order, but it is said, if the article is made substantially according to the order, it cannot be refused for any trifling difference, which does not injure it, or affect its utility. It does not appear from the case, nor is to be fairly inferred, that the fitting which was objected to, was of such a trifling character as to come within the rule cited by the counsel, “ de minimis non curat lex” The casting was sent to a machine shop to befitted; and though the precise character of the work done does not appear by the case, there is no pretence, that it was regarded as trivial. The plaintiffs’ counsel, in his argument, admits their materiality, when he says, that without the fittings the wheel could not be used at all. What qualifications of the instructions, it might have been proper for the judge to have made, if it had appeared, or had been suggested, that the fittings were wholly immaterial and unimportant, is not material to be considered. As a disputed matter of fact it might have been properly left to the jury. The rules laid down by the court for the guidance of the jury are not either expected, or required to contain the limitations and qualifications, which would apply or •be required in every supposable case. It is enough, if they are stated with such qualifications, as the case in question calls for. A verdict will not be set aside for any error in the charge, unless it relates to a matter material in the case on trial. The charge was not that any work done to the casting without orders [408]*408would be enough to release the party who ordered it, but the charge was confined to the case before the court, “ if the founder caused or permitted it to he fitted without his order or consent.” This, as indeed the whole case, shows that the fitting was a material and important matter. And in that view the charge was equivalent to saying, that if the article was made in any material respect contrary to the order, the party was not bound to take it; and this we conceive to be the true doctrine of the law on the subject. That the question of the materiality of any thing done without or contrary to order, is a question for the jury, is too clear for discussion, if any such question arises in a case; but it is very apparent, that no question of that kind arose or was discussed, otherwise the evidence would have shown what was the amount and character of the work, called fitting. The question really in controversy, is shown by the instruction asked for by the plaintiffs, and the refusal of which is the last ground of exception. They asked the court, to charge, that any fitting of the wheel, or any work done upon it, without the defendant’s order, which would entitle him to refuse to receive it on that account, must be of a material character, and such as would injure it in some respect, or render it less valuable for the defendant, for the purposes for which he wanted it; and if the jury believed from the evidence, that the fitting did not injure the wheel, but in fact made it better, the defendant could not refuse to receive it, on that account. This shows, that the question involved, was not whether the unordered work was immaterial, but whether the casting could be refused, when the work done without orders did not injure the wheel, hut in fact made it better, If the work was so trifling as to be immaterial, “ de minimis,” this question could not arise. The great question of the case was involved in this desired instruction. Was the defendant bound to take an article, he had ordered, if it was not made agreeably to his orders, if the jury think, that the deviation from the orders did not injure the article, but in fact made it better ? If the rule contended for by the plaintiff exists, its application cannot be brought in question now for the first time; and we might reasonably expect the plaintiffs coun[409]*409sel to point to the case where any such principle is recognized; but none such is cited. It wonld establish the rule, that the choice of the kind and quality of an article ordered to be made rests with the workman who makes it, and not with the person who orders it, provided the article is not injured, but is in fact made better. A man would have no right to object to a brown coat, when he orders a black, if the brown coat is the better article ; nor to its being trimmed with gold lace, if it did not injure the coat, but in the opinion of the jury, in fact made it better. To state such a result is all that can be required to show the principle to be unsound. Every man has the right to choose his own workman, and to make his own bargains, and we can easily imagine, that a man building a saw mill in the country, should have good reasons to prefer the plain but strong work of his neighboring blacksmith, to the more accurate and nice and perhaps highly polished work and corresponding price of the machine shop; and it would seem to be a good reason to refuse to take an article ordered in its rough state, if it was finished by some one without his orders, with whom he might have a controversy as to the pay for the work, if he then accepted the article, though such finishing might add to its value.
The last exception raises the question, how far a man is estopped to rely on' an objection at the trial, which he had not previously urged. The article was in this case shown to the defendant, and he did not take it, but he did not assign his reasons for not taking it.
It is contended, he cannot now insist that it was fitted without his order. It is said, the fittings, if objected to,, might have been removed, like the strings from a pair of shoes, but the case does not show that such was the character of the work called fittings, neither did the exception rest on any such ground. As the case shows, the fittings were work done to the casting itself. And it seems now for the first time suggested, that if the defendants objection had been known, the fittings might have been removed, and the article would then have been as he ordered it.
It is a legal no less than an equitable principle, that he who is [410]*410silent when he ought to speak, shall not he heard to speak, when he ought to be silent.
The cases to which this principle applies are those where persons are led by the silence of others, to do what they would not have done, if they had known the facts. 1 Story Eq., 375; Runlet v. Otis, 2 N. H. Rep., 167 ; State v. Dwinnell, 6 N. H. Rep., 167; Morse v. Child, 6 N. H. Rep., 521; Exeter Bank v. Gordon, 8 N. H. Rep., 79 ; Eaton v. Rice, 8. N. H. Rep., 376 ; Clement v. Clement, 8 N. H. Rep., 472; Marston v. Brackett, 9 N. H. Rep., 336 ; Thompson v. Sanborn, 11 N. H. Rep., 201; Marshall v. Pierce, 12 N. H. Rep., 127; Wood v. Fletcher, 3 N. H. Rep., 61; Tufts v. Hayes, 5 N. H. Rep., 542; Davis v. Sanders, 11 N. H. Rep., 259; Sanborn v. Little, 3 N. H. Rep., 539 ; King v. Fowler, 16 Mass., 397.
Here nothing was to be done on the part of the plaintiffs. Nothing was done. The whole matter was past. The plaintiffs were not misled by defendant’s silence, to do otherwise than they would have done, if the defendant’s objections had been stated. And we are aware of no principle on which the defendant can be barred of any of his grounds of defence, because he did not then insist upon them. We are of the opinion, that the objections must be overruled.
Judgment on the Verdict.