
    Robbins versus Otis.
    A declaration for the sale and delivery of pine timber is not supported by evidence of the sale and delivery of spruce timber.
    The words, “ if E. will say I have had the timber, I will pay for it,” or, “ Prove it by E., and I will pay for it,” will not take a case out of the statute of limitations, unless the condition be complied with. »
    Assumpsit. The defendant pleaded, 1. The general ssue ; 2. Actio non accrevit infra sex annos. To the second plea the plaintiff replied, that the defendant promised within six years ; and upon this, issue was joined.
    The action was brought to recover the price of about seven tons of pine timber, sold and delivered by the plaintiff to the defendant in the year 1808. To prove the sale and delivery the plaintiff produced the ‘deposition of one Merryman ; whose testimony tended to prove the sale and delivery of about nine tons of spruce timber. The evidence in relation to a promise within six years, was, that the defendant said he did not owe the plaintiff any thing, but that if Ellison (a surveyor of lumber) would say he had had the timber, or if the plaintiff would prove it by Ellison, he, the defendant, would pay for it, if he could riot show that he had paid for it; but there was no evidence that Ellison (who at the time of the trial was dead) had ever' been applied to by either party, or had ever said any thing upon the subject.
    
      Parker C. J., who tried the cause, instructed the jury, that the testimony of Merryman, though it varied from the plaintiff’s declaration both as to the quantity and kind of the article sued for, was competent evidence to support the action ; and that if Otis said, if Ellison would say he had had the timber, he would pay for it, it was in effect saying, if the plaintiff would prove he had had the timber, he would pay for it. A verdict being returned for the plaintiff, the defendant moved for a new trial on account of these instructions to the jury.
    
      Fletcher and Bliss, in support of the motion,
    cited, on the point of variance between the evidence and the declaration, Clark v. Manstone, 5 Esp. 239 ; Thornton v. Kempster, 1 Marsh. 355 ; Anon. 1 Ld. Raym. 735 ; Crawford v. Mor 
      rell, 8 Johns. Rep. 195; Symmons v. Knox, 5 D. & E. 67 ; Hockin v. Cooke, 4 D. & E. 314.
    They contended that the promise within six years was conditional, and would not take the case out of the statute of limitations, unless the condition were complied with. Besford v. Saunders, 2 H. Bl. 116 ; Cole v. Saxby, 3 Esp. 159 ; Davies v. Smith, 4 Esp. 36 ; Bush v. Barnard, 8 Johns. Rep. 407 ; Williams v. Innes, 1 Campb. 365, and note ; Guier v. Pearce, Browne, (Pennsyl.) 35, and Read v. Wilkinson, ibid. Appendix, 15.
    S. L. Knapp, for the plaintiff,
    said the variance did not go to the gist of the action, and therefore was not material. Cunningham v. Kimball, 7 Mass. Rep. 65 ; Burbige v. Jakes, 1 B. & P. 225. He observed that spruce was classed in natural history under pines, and that there was a greater difference between some species of pine, than between spruce and pine.
   Parker C. J.

delivered the opinion of the Court. Upon the ground of variance between the evidence and the declara tian, the Court are of opinion that the verdict is wrong. . The demand sued relates to a certain quantity of pine timber ; the testimony of Merryman is, that the timber which he supposes Otis had of Robbins was, as he believed, spruce timber. Now, although this would not establish a variance, he speaking doubtfully, if the plaintiff had otherwise proved a sale and delivery of pine timber, yet as without the testimony of Merryman there would be no sufficient evidence of the sale and delivery of any timber, the defect in his testimony as to the kind of timber must operate to the disadvantage of the plaintiff. As far as the testimony of this witness proves the sale and delivery of any timber, it is of a kind different from that which is described in the plaintiff’s demand. As to the supposed identity of pine and spruce, we all think this cannot be maintained ; they are bought and sold as specifically different articles, and by the bills of Merryman accompanying his deposition, it appears there is a great difference in the price. The authorities cited by the defendant’s counsel are conclusive to show that a mis taken description of the article sold, as established by the ev" dence, is fatal to the right to recover.

As the sum in controversy is trifling, and the expense already incurred is great, it is proper further to state, that in the opinion of the Court there is no competent evidence to take the case out of the statute of limitations by a new promise, express or implied. There is certainly no express promise, and there is not evidence sufficient to prove an acknowledgment from which a promise would be implied. The defendant on all occasions denied that he had had the timber, and insisted that if he ever had, it had been paid for. The only equivocal circumstance is, that when told that the plaintiff could prove the delivery by Ellison, he replied that if Ellison said he had had it, and he had not paid for it, he would. A majority of the Court are of opinion, that this declaration could charge him only in case Ellison had sworn, or had said that he had surveyed the timber to the defendant, or had otherwise known of the delivery ; in other words, that this being a conditional promise, depending upon the evidence to be furnished by Ellison, or from his book, it cannot avail the plaintiff without his bringing himself within the terms of the promise.

New trial granted. 
      
       See Goulding v. Skinner, ante, 162 -164, note (1).
     