
    Leonard Harris versus John Rayner et al.
    
    In an action for an injury sustained by the oversetting of the defendants’ stagecoach, the plaintiff alleged, “ that lie paid for his passage in the coach from Albany to Boston, the sum of ten dollars, being the usual fare, and in consideration thereof the defendants undertook faithfully and carefully to transport him from Albany to Boston ; ” but the proof was merely, that the plaintiff rode in the coach a part of the route, namely, from Worcester to Boston, which is a portion of several lines of travel : —
    
      Held, that the evidence did not prove the contract set out in the declaration.
    
      Held, also, that the averment of the consideration of the contract was material.
    
      Held, also, that the evidence would warrant the jury in presuming a transportation for 1 ire.
    This action was brought to recover damages for an injury sustained by the plaintiff by the oversetting of a stagecoach owned by the defendants, through the negligence of their driver.
    The plaintiff alleged, “that he paid the defendants for his passage in their stage from Albany to Boston, the sum of ten dollars, being the usual fare for said passage, and the defendants, in consideration thereof, undertook and promised faithfully and carefully to transport the plaintiff on the said passage from Albany to Boston.”
    The case was tried on the general issue, before Morton J. The plaintiff proved that he rode in a stagecoach, owned by the defendants, from Worcester to Boston, and that just as he arrived at Boston the coach was overset by the carelessness of the driver, and the plaintiff thereby injured.
    The plaintiff produced no proof in support of the allegation above recited, and the defendants objected to his recovery without further evidence. But the judge ruled that the allegation was not material, and that the plaintiff might recover without proving it. In the course of the trial it appeared, from the testimony on the part of the defendants, that it was usual in this line of stagecoaches for passengers to pay their fare in advance.
    The jury returned a verdict for the plaintiff; but if the above decision was wrong, a new trial was to be granted.
    
      Oct. 17th.
    
    Hoar, for the defendants.
    Although the plaintiff was not required to state the contract so particularly as he has done, yet, having made the allegation, he was bound to prove it. Cudlip 
      v. Rundle, Carth. 202, cited in Bristow v. Wright, 2 Doug 668; Rex v. Tanner, 1 Esp. R. 304, Weall v. King, 12 East, 452; 3 Stark. Ev. 1529, 1531, 1542; 2 Stark. Ev. 84, Metcalf’s note; Snell v. Moses, 1 Johns. R. 105.
    
      T. Fuller, contra.
    
    The reception of the plaintiff into the stagecoach implies a contract to carry him safely, and it was not necessary to allege or prove any thing more. The allegation that a sum of money was paid may be rejected as surplus age. Goggs v. Bernard, 2 Ld. Raym. 911, 919; Elsee v Gatward, 5 T. R. 143; Shiells v. Blackburne, 1 H. Bl. 158; Gwinnet v. Phillips, 3 T. R. 645; Peppin v. Solomons, 5 T. R. 496.
    But if a pecuniary consideration must be proved, there was evidence of one here, it being usual to take money for the transportation of passengers in the defendant's’ coaches. It was not necessary to prove any particular sum, as this was an implied contract.
   Wilde J.

delivered the opinion of the Court. We think there was no sufficient proof at the trial, of the contract as alleged in the declaration. The declaration alleges a contract on the part of the defendants, to transport the plaintiff from Albany to Boston. The proof was, that the plaintiff rode in the defendants’ stage from Worcester to Boston ; and although this is part of the route from Albany to Boston, yet it is part also of many other lines of travel, so that the contract, as alleged, remains without proof.

The proof is also defective in another respect. It is alleged that the plaintiff paid for his passage the sum of ten dollars, and this allegation also is unsupported by evidence. It has been contended that this averment in the declaration is immaterial, and may be rejected as surplusage. But it is clear, we think, that this is a material averment. The consideration is an essential part of a contract, and must be truly and fully set forth. It is true that the defendants might be answerable for wilful or gross negligence on an undertaking to carry without hire; but in the performance of such an undertaking tney would be bound to use only ordinary care. Whether the defendants were guilty of that degree of negligence which would be sufficient to charge them under such a contract, we cannot determine, the evidence not being reported. It is sufficient for the present, that it is not the contract declared on.

Enough, however, of the evidence is reported to have warranted the jury to presume a transportation for hire, had it been left to them to presume the fact. But as this was ruled to be immaterial, that part of the case was withdrawn from their consideration.

New trial granted. 
      
       See Roper v. Stone, Cooke, 499; Mosby v. Leeds, 3 Call, 439; Cook v. Bradley, 7 Connect. R. 57; Brown, v. Adams, 1 Stewart, 51; Chitty on Contr. (4th Am. ed.) 21 et seq.
      
     