
    Foster versus Pennington.
    A declaration upon a contract for a specified quantity of an article, though laid under a videlicit, is not sustained by proof of a contract for a larger quantity.
    Exceptions from the District Court in Aroostook county.
    Assumpsit on an alleged contract to deliver to the plaintiff !í a certain large quantity of oats ; viz. 600 bushels.” The proof was of a contract for 1000 bushels, of which the defendant had delivered 207. The defendant’s counsel objected to the variance; but the Judge instructed the jury, that a contract to deliver 1000 bushels would sustain the declaration.
    Verdict for plaintiff.
    
      Kelley and McCrillis, for plaintiff,
    relied on 2 Hill, 126. They contended that, under a videlicit, much latitude is allowed ; that the quantity alleged under a videlicit is but surplusage. Bristow v. Wright, 1 Smith’s Leading Cases. The declaration was amendable, and substantial justice has been done.
    
      John Hodgdon, for defendant.
   Howard, J.,

orally.—The instruction was erroneous. It made a contract for 1000 bushels to sustain a claim upon one for 600. The videlidt can have no such effect. There was a variance, and it was a material one.

Exceptions sustained.  