
    David Davis against John Crawford.
    • During the war a contract was made with a wagoner, to carry a road of cotton fromJjancasterto SSSfiedSimpeS pSion tuthe? The carrier atViV'efamvvMe Kin&VZ cotton, news of jS“e deat™™|: ednotto send the cotton, and made-plaintiff unload. tS^iSffo" tlS Kotioiiarryi"s K» set1 «“Vereisstm nonsuit1011 for 4
    This was a special action on the case for a breach of contract. One count only was stated in the declaration, to wit, that the defendant had 4 ^ hired the plaintiff to haul twenty-five hundred weight of cotton from Lancaster District, to the , city of Richmond, in the State of Virginia, at and for the price of five dollars, per hundred weight. 9 x 1 ° In assigning the breach in the declaration, the • plaintiff* stated that he had started and progress ed upon his journey, when the defendant pursued after, overtook, and stopped the plaintiff*, thereby wholly preventing him from complying with contract, &c. The plaintiff*proved the contract of hiring on the part of the defendant, and that he was to haul a load of cotton to Richmond, and was to receive five dollars per hundred weight, but did not prove how much he was bound to., haul.. It was also proved, that plaintiff was in the act of loading his wagon, at the house of defendant,, with cotton, when the news of peace was received. Then, on this information, the defendant refused to send his cotton; upon which the plaintiff unloaded his wragon. The evidence here closed, when the defendant moved for a nonsuit, on the ground that plaintiff had failed in proving the special contract, as laid, to wit, that he was to haul 2500 lbs. of cotton; and that the faets of having started, and was pursued, &c. were not proved, which, although immaterial in themselves, were not wholly unimportant, and, having been set forth in the declaration, ought to have been proved. The presiding Judge overruled the motion, on the grounds taken for a nonsuit. The defendant has now moved to set aside the verdict, and that leave be granted to enter up judgment on the nonsuit, on the following, grounds :
    1st. That the contract, as laid in the declararation, was not proved by the plaintiff!
    2d. That facts, immaterial in themselves, and unnecessary, yet not wholly unimportant, were laid in the declaration, and not proven by the plaintiff!
   The opinion of the Court was delivered by

Mr. Justice Gantt.

This was a special action on the case, for. an injury which the plaintiff sustained, by a breach of contract, entered into between him and the defendant. Had the contract been fulfilled on the part of the plaintiff, and the action had been brought for the wages to which the plaintiff might have entitled himself by an inland waggage to Richmond, there might, in such case, have been some little plausibility in the first ground as stated; but even in that case, it would have been considered as an immaterial variance,'as the cotton to be carried was to be paid for at the rate of so much per hundred. There were mutual promises; the plaintiff,on his part, agreed to carry a load of cotton for the defendant from Lancaster to Richmond; the defendant agreed to pay him for this service at the rate of five dollars per hundred. The plaintiff made the necessary preparations for the journey, did actually take in a part of the load, when the defendant discharged him, refusing to fulfil his part of the contract or agreement. The law says, that, in such case, he who was ready, and offered to perform his part, hut was discharged by the other, may maintain an action against the other, for not performing his part of the agreement. (Douglass, 684.)

As to the 2d ground, the facts stated to have been immaterial and unnecessary, as charged in the declaration, appear to me to have been otherwise. They were substantiallyproven on the trial, and furnished the basis upon which the action on the case was bottomed. Upon the whole, I am of opinion that the defendant may think himself fortunate, in having so easily gotten rid of this losing bargain. I am of opinion, that he has not the shadow of pretence for bringing this appeal.

The presiding Judge took a very correct view of the case, and properly overruled the motion for a nonsuit; and I am equally decided, that his appeal to this Court should be also overruled.

Grimfcé, Colcoclc, Cheves, JVott, and Johnson, J. concurred.  