
    * James McMillan v. Thomas C. Theaker.
    In an action of assumpsit on a warranty pf chattels, it is sufficient to aver, in the declaration, a sale at, and for, a certain price, without specifying the amount actually paid.
    But where the pleader has undertaken, in his count, to specify the price paid, and offers in evidence a contract which shows the payment of a different sum, it is a fatal variance.
    This is a Writ of Error, to the Supreme Court of Belmont county.
    The action below was assumpsit- upon a warranty of a pair of French Buhr Millstones. The declaration contains five counts; the first four counts are special; the fifth is the common count for money had and received, etc.
    The first count alleges that, “ in consideration that the said plaintiff, at the special instance and request of the said defendant, would buy of him, the said defendant, a certain pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain price or sum of money, to wit, the sum of one hundred and eighty dollars, to be paid therefor by him, the said plaintiff, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff that the said millstones then were good, both in quality and workmanship; and ■the said plaintiff avers, that he, confiding in the said promise and ■undertaking of the said defendant, did afterwards, to wit, on the' day and year aforesaid, at the county aforesaid, buy the said millstones of the said defendant, and then and there paid him for the same, the said sum'of one hundred and eighty dollars.”
    The second count alleges that, “ in consideration that the said plaintiff, at the like special instance and request, of the said defendant, had then and there bought of him, the said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain price, or sum of money, then and there agreed upon, between 25] him, the said ^plaintiff, and the said defendant, he, the said defendant, undertook, and then and there faithfully promised the said plaintiff, that the said last mentioned pair of French Buhr Millstones, at the time of the said sale thereof, were good, both in quality and workmanship,” etc.
    The third count alleges that, “ in consideration that the said plaintiff, at the like special instance and request, of the said defendant, had then and there bought of him. the said defendant, a certain other pair of’ French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price or sum of money, then and there agreed upon, between him, the said plaintiff, and the said defendant, he, the said defendant, undertook, and then and there faithfully promised the said piaintiff, that the said last mentioned Millstones, at the time of the sale thereof, were good, both-in quality and workmanship.”
    The fourth count alleges that, “ in consideration that the said plaintiff, at the special instance and request of the said defendant, had them and there bought of him, the said defendant, a certain other pair of French Buhr Millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, Pennsylvania, at and for a certain other price, or sum of money, then and there agreed upon by him, the said plaintiff, and the said defendant, he, the said defendant, undertook, and' then and there faithfully promised the said plaintiff, that the said last mentioned Millstones, at the tin e of the said sale thereof, were good, both in quality and workmanship,” &c.
    The fifth count is the common count, in the usual form throughout.
    It appeared from the bill of exceptions that the plaintiff offered in evidence under this declaration, and to make out his case, the following paper; '
    “ Willow Grove Mills, Belmont county, O. Oct. 5,1887. Received of James McMillan the sum of one hundred dollars, in part pay for a pair of French Buhr millstones, four feet diameter, made by W. W. Wallace, of the city of Pittsburg, * Pennsylvania — warranted [20 good, both in quality and workmanship — for the sum of $186 ; the balance payable in one year from date, and exclusive of irons, received by me. Thomas C. Theaker.”
    To the admissibility of this papor the defendmt objected, and the court sustained the objection. And the counsel for the plaintiff admitting that the ease could not be made out without the evidence which was contained in the paper, and offering no other testimony, the court •ordered a nonsuit.
    The rejection of this paper is assigned for error.
    Cowan and Jewett, for plaintiff in error.
    The special counts do not, either of them, undertake to describe any paper, nor do they refer to any paper. They set out the contracts, for the breach of which they complain. In setting out the contracts, those counts describo the millstones, and the warranty of defendant, and the first count states the price which the plaintiff agreed to pay for them, and (under a videlicet) that the price was paid on the day the contracts are (also under a videlicet) alleged to have been made. The first count, the only one which specifies the price agreed upon, does not*allege the time of payment.
    The receipt offered, and rejected, describes the millstones, the warranty and the price, identically, and, except in some instances of words in full for figures and abbreviations^ literally as they are set out in the declaration.
    The receipt is for $100, and shows a credit for the remaining $80 of the price, of one year. The first count says the price was $180 ; none of the counts state any time of payment. The contract described must be proved, in substance, as stated, or the plaintiff can not recover.
    The proof 'of particular stipulations in the contract, however, not in any way varying the stipulations mentioned, though not noticed in the declaration, is not a variance. A farm described as situated in Belmont county, Ohio, may be shown to be in Richland township, Belmont county, without a variance. An * agreement described [27 as a promise to pay $180, may be shown to be a promise on time, without a variance. If, which is not admitted, there is not sufficient ■certainty of description in the declaration, that defect is not ground for rejecting evidence. There is nothing in the paper inconsistent with the declaration; the latter omits, the former fixes, the time of payment.
    The pleader has described the contract according to its legal effect. True, a promise to pay without naming the time of payment, is, in legal effect, a promise to pay, in a reasonable time ; and perhaps a contract set out, in hcea verba, to pay money without naming the time of payment, would be understood to be a promise to pay in a reason* able time. Such, however, would not be the understanding of the description of such a contract, according to its legal effect, where the time of payment is omitted. In such case it is a clear omission to State that part of the contract; and the court can no more supply the omission by inference, than it can supply any other omitted fact. Where a contract is described by its legal effects, those legal effects are treated, and will be regarded, as facts, and marks of identity; and whatever is presented, having the marks given, will be taken for the thing described.
    But the declaration neither describes nor refers to a paper. If the paper offered tended to prove a material fact in the plaintiff’s case, it was admissible. If it tended to prove a contract unlike that described, in some particulars, it was the receipt of the defendant, and the plaintiff, though he introduced it, would not be estopped from showing that in those points of difference, the mistake was in the receipt. A party may not impeach his own witness by proving his bad character, but he may show that his statements are not true in whole or in part.
    Again : here is a count for money had and received by the defendant to the plaintiff’s use. There are many cases where, if money has been paid by him, the party injured, upon a false warranty, can recover back for money had and received. If the goods sold be wholly worthless, or, being of some value, have been returned to vendor, or 28] tendered to and refused by * him, the money paid for them may be recovered back under the count for money had and received.
    We, therefore, confidently insist that the paper in question was improperly rejected, and that judgment should be reversed.
    The declaration describes a contract, not a paper. It describes a contract for the sale of millstones, for money, at a certain price, with warranty. The paper rejected shows a sale of similar millstones for a. like price, and with a like warranty. The paper shows a credit of one year for part of the price. The declaration says nothing of the time of payment. We say this is no variance between the proof and declaration ; that if it were a variance, it would not be good ground for rejeefcing a paper not referred to as the ground of action, or depository of the contract ; and, we furthermore insist, that the paper should have been received as evidence of material facts under the count for money had and received.
    William Kennon, jr. and Henry Kennon for defendant in error.
    This declaration purports to be on a contract of warranty between the parties : and, upon principle, or from the authorities, it would seem to be essentially necessary to describe and set out, in its legal effect, at least, the contract, accurate and specific, as to its terms, in the. declaration. 1 Chitty’s Pleadings, 334; 1 Saunder’s Pleading and Evidence, 137 ; Jones v. Ashburnham, 4 East. 464; King v. Robinson, Cro. El. 76; Symmons v. Knox, 3 T. R. 67.
    The first count in this declaration alleges, that the sum of one hundred and eighty dollars, being the full consideration, was paid at the time of making the contract of warranty. Here the payment of one hundred and eighty dollars was the consideration of the warranty that the property was good, both in quality and workmanship ; but when the contract is produced in evidence, it shows that one hundred dollars was received, in part pay, and that the balance, eighty dollars, was to be paid in one year.
    *The contract alleged here, and the contract offered to be proved, [29’ are different and distinct contracts, in terms. The one shows the whole consideration-paid; the other shows part of the consideration paid, and a part to be paid at the expiration of one year ; the one shows an executed consideration in full; the other proves a consideration, part executed, and a part executory.
    This count claims to recover back the money paid, and for this purpose avers that the property, warranted and delivered, was of no value. Is it not, for this purpose, necessary to state truly the money paid, and to set out the contract as it really existed. If the contract be truly stated, in this count of the declaration, the plaintiff is entitled to recover one hundred and eighty dollars, being the consideration paid,, with interest; this is, by the count, his measure of damages, if the property delivered be of. no value ; and the sum recovered in the Common Pleas follows the count in this particular, as the record shows ; but when the real contract is produced, the title to recover materially changed ; one hundred dollars, with interest, is the measure of damages — eighty dollars, by the terms of the contract, was, and still is, in the plaintiff’s hands, unpaid. There -can be no doubt thus far, that there is a material variance between the contract alleged, and the contract offered in evidence. “ Where the declaration stated the consideration to he the purchase of sheep for £54 11s. 6d and the price proved was £5412s. 6d. the plaintiff was nonsuited for the variance.” Saund. Pl. and Ev. 137, 138 ; Symmons v. Knox, 3 T. R. 67.
    So, where the consideration stated was the forbearance of payment of £21 16s., and the sum proved was £21 18s. it was held a fatal variance. Saund. Pl. and Ev. 138 ; Amfield v. Bate, 3 M. and S. 173; 1 Chitty Pl. 326, 327 ; 6 East. 568; 12 East. 1 ; 13 East. 102; 2 B. and P. 116 ; 3 Day 312.
    The second, third and fourth counts of this declaration, in setting out the contracts, are precisely the same ; and the only difference appearing, is in the assignment of breaches. The pleader, in these counts, attempts to declare upon a contract, the consideration of 30] which, upon the part of the plaintiff, was * executed — was performed, without stating what, or how much, the consideration was ; but so far as the question upon this record is concerned, it can make but little difference, whether the consideration on the part of the plaintiff be executed or executory. If the consideration be executed in the contracts stated in these counts, then a part of the consideration of the contract offered in evidence is executory; if, upon the other hand, the consideration is executory, a part of the contract offered in ■ evidence is executed. One or the other views of these counts must be taken. And no count in the whole declaration avers this contract to be what it really is No count avers that, in consideration of the payment of one hundred dollars in hand, and the further sum of eighty dollars, to be paid at the expiration of one year, the defendant warranted the millstones to be “ good, both in quality and workmanship.”
    This is the real contract between these parties ; and if it be true, as the pleader alleges, that the property delivered was of no value, the measure of damages to be recovered will be one hundred dollars, with interest; but, by the contract set forth in these counts, money that has never been paid by the plaintiff, is sought to be recovered.
    The consideration and contract must be accurately stated. 1 Chitty Pl. 326, 327; Saund. Pl. and Ev. 144; Churchill v Wilkins, 1 T. R. 447 ; Sands v. Ledger, 2 Ld. Raym. 792.
    “ In a case where the plaintiff purchased a horse for £55, defendant warranting it sound, and agreeing to give £1 back, if it did not fetch plaintiff £4 or £5, and the averment was, that in consideration that the plaintiff would buy of defendant a horse for a certain price, to wit, £55, defendant undertook the horse was sound, it was held a fatal variance.” Saund. Pl. and Ev. 144; Blyth v. Bampton, 3 Bing. 472.
    The only question remaining, is whether the plaintiff can recover upon the common count. The contract is special, and fetill open, and has not been rescinded by mutual consent, so far as appears from the contract, alleged, or offered to be proved ; and the bill of exceptions admits that the case could not be made, out without the evidence contained in the contract * rejected. The warranty can only be tried [31 upon a special count. If the property had been delivered back, and received, the common count could be sustained for the money paid. The warranty was not in question -in that event, and it would be unnecessary to prove that the contract was rescinded, and the property •delivered back.
    The bill of exceptions here shows that the plaintiff can not sustain his ease, without proof of the contracts offered : this proof and this contract would be of no use, unless the warranty was a question in the case, and then the common count can not be sustained.
    “ Where a special contract is still open, and has not been rescinded by mutual consent., it is necessary to declare specially ; as if a horse be sold with a warranty of soundness, although it be unsound, and •the purchaser immediately offer to return it, he can not recover baek the price on the count for money, had and received, if the vendor refuse to receive back the horse, for the warranty can only be tried upon a special count. 1 Chitty Pl. 388; Doug. 23; 7 East. 274; 2 Campb. 416 ; 3 M. and S. 349 ; Thornton v. Wymer, 12 Wheat. 183.
    It is claimed by the pleader that the consideration in the first count is laid with a “ videlicet” and therefore, the contract offered ought to be received under that count. If a material averment in a declaration, being so laid, can be made immaterial and not traversable, it is rather new doctrine in pleading. This doctrine is well settled. 1 Saun. 170, n. 2 ; Grimwood v. Bavrit, 6 T. R. 460 ; Symmons v. Knox, 3 T. R. 67 ; Hastings v. Lovering, 2 Pick. 223 ; Gleason v. McVikar, 7 Cow 42; 1 Chitty, Pl. 643.
    It is also claimed by counsel that, notwithstanding the contract offered in evidence by the plaintiff, still he was not bound by it, but might show a different and distinctlcontract; one, perhaps, that would meet the contract laid in the declaration. Admit, for the sake of argument, that the contract in writing may be passed over, and a parol •contract shown still the bill of exceptions rests upon the contract offered, and admits that, the ease can not be made out without the contract offered. If * another contract could have been offered, why [32 make this admission? If it could be explained, why not explain, and open the way for its admission ? It is believed, however, that a written contract can not be explained in a court of law. The bill of exceptions admits that the contract offered must be received under some count of the declaration, or the plaintiff fails on the ground of variance.
    The promise and warranty of the defendant, on one side, and the consideration paid, or to be paid, on the other, must be accurately stated. No recovery can be had without stating the promise and warranty correctly, and equally so the consideration. The one is tho consideration of the other, and both together constitute the contract.
    Upon no principle of pleading can this contract set forth in the-bill of exceptions be admitted under either count of the declaration, and it is confidently believed, that the court did not err in rejecting the evidence offered, but are amply sustained by the law of pleading.
    Cowan and Jewett, for plaintiff, in reply.
    The special counts, in this ease, are copied from the precedents in 2 Chitty’s Pleading, 279 to 280.
    Counsel are mistaken, in supposing that the first count states the payment of $180 as the consideration for the warranty. The consideration is, that plaintiff would buy the millstones. Payment is not a necesssry allegation to support the action. 1 Chit. Precedents, 187, and 2 Cowen’s Treat. 615.
    Counsel are again mistaken, in supposing, that “ this count claims to recover back the money paid.” It is for damages arising from the breach of warranty. The money paid may be considered in assessing damages.
    It is assumed, that the receipt proves that $80 of the price of the millstones is unpaid. It proves the payment of $100. The $80 may have been since paid, and, if so, might be proved. It was admitted that plaintiff could not make out his case without the paper in ques-33] tion. It might be the only evidence of *the payment of $100. It might be the only evidence of the warranty. These were material facts: the warranty to make a case, the payment upon the amount of damages.
    Under the count for money received, the payment of money was a material fact. This the receipt proved. Plaintiff, having proved this fact, might have proved the mutual rescindment of the contract upon-which it was paid, the failure of defendant to deliver any millstones, or any other fact, showing that it was wrong for defendant to retain any part of the money. The court, at this stage of the trial, will not assume that plaintiff has not evidence of other material facts, and, therefore, rule out evidence to one material fact.
    The second, third and fourth counts are good. They allege, that, in consideration that plaintiff has bought millstones of defendant, for a certain price, defendant warranted them.
    The receipt is for $100, in part pay for millstones, warranted for $180, balance payable in one year.
    The receipt is not the contract, It is not referred to in the declaration. It is evidence, however, that plaintiff bought millstones of defendant for a certain price, and, that, in consideration thereof, defendant warranted the millstones.
    If the facts in the receipt varied from the allegations, still it would be competent under the count for money had and received, or, as it is the receipt of the party from whom the objection comes, it might be shown to be untrue, where it varies from the declaration.
    If, upon the payment of money, a receipt be given for the money, and in the receipt, from mistake, or by design, statements are made prejudic al to the party paying the money, which are untrue, the holder of the receipt may use it to prove the payment, and show the falsehood of the other statements.
    The authorities cited, we think, are misapplied.
   Read, Judge.

This ease presents a simple question of variance.

The declaration in assumpsit contains four special counts, upon, breaches of warranty upon the sale of French Buhr Millstones, and the usual common count. The common counts will * not be con- [34 sidered, as the record discloses nothing which would authorize a recovery under either of them.

The paper which was offered in evidence, and rejected by the court, as inadmissible under any count in the declaration, reads as follows :

“ Willow Grove Mills, Belmont Co., O., Oct. 5, 1837.
“ Received of James McMillan the sum of one hundred dollars, in part p y for a pair of French Buhr Millstones, four feet diameter,, made by W, W. Wallace, of.the city of Pittsburg, Pennsylvania; warranted good, both in quality and workmanship, for the sum of $180, the balance payable in one year from date, and exclusive of irons, received by me. Thomas C. Theaker.”

The first count in the declaration avers, that one hundred and eighty dollars, the price of the article purchased, which constitued the consideration of the warranty, was paid at the time of making the warranty.

The paper offered to be introduced under this count shows that only $100 was paid at the time the warranty was made, the balance to be paid in one year from date. The paper offered in evidence was different from tbat counted upon, and was, therefore, under that count, properly rejected.

The second, third and fourth counts, which are alike, except in the assignment of breaches, only aver a sale of the millstones at a certain price, without describing it specially as the consideration for the warranty. Under these counts, the paper rejected should have been admitted in evidence.

The distinction is this : in a count upon a warranty, a valid sale must be averred as the consideration of the promise of warranty. To aver that the sale, which was the consideration for the promise of warranty, was for a certain price, without specifying it, is sufficient, because this shows that the sale was for consideration, and valid. But if the pleader attempts to set out and describe, particularly, the consideration of the sale, and introduces a written contract of sale, containing a different consideration, it must be rejected, upon the ground 35] * that the declaration shows a contract of sale, constituting the consideration for the warranty, different from the contract of sale offered in proof. But if the pleader simply avers a valid sale, counting upon it as the consideration of the promise of warranty, he may introduce in evidence any written contract which would go to establish the sale and warranty in respect of the thing sold.

Judgment reversed, and cause remanded.  