
    Cabiness against Brown.
    
      December, 1821.
    Variance be- and* proof to-plaintiffs performance of his part of the contract immaterial.
    
      BROWN declared' against Cabiness on a special parol oontract, for the sale of the whole of plaintiff’s crop of tobacco at 6t cents a pound, to be delivered at Brown’s house, and averred that he delivered 8103 pounds, and was then: and there ready, and offered to deliver the residue of his cr0p) amounting to 5000 lbs. more, which defendant neg~ lected and refused to receive.
    The proof showed' that he delivered all of Ms crop but a small quantity of inferior quality, and not merchantable... The defendant moved the Court to instruct the Jury, as in case of nonsuit. Motion denied. Verdict and Judgment for the price of the tobacco delivered. .Pending the trial the defendant took a bill of Exceptions to the decision on his motion above mentioned, and assigned the matter therof hete as Error.
    
      McKinley for plaintiff, Minor and Taylor for defendant in. Error.
   Judge Lipscomb

delivered the opinion of the Court.

The statement of .the Contract, and the only material part of the averment, was proved as set out in the declaration. The other part of the averment, taken separately from the first, was immaterial, and not calculated to mislead, and it was unnecessary to prove it.

Judgment affirmed. (3 Cra. 193, 208.)

Judges Clay and ¡Vetó not sitting.  