
    Goulding et al. versus Skinner et al.
    
    Proof that certain machine cards were warranted equal to any in America will not support a declaration in assumpsit alleging that they were warranted to be good and merchantable.
    
    In an action of assumpsit to recover damages for the breach of a warranty made on the sale of certain machine cards, the declaration alleged, that the defendants warranted them to be good and merchantable, and that in truth they were not so, but were of little or no value. At the trial, which was upon the general issue, before Wilde J., the plaintiffs, to prove the warranty, read to the jury an advertisement stating that machine cards were manufactured -by the defendants, warranted equal to any in America. The judge instructed the jury, that a warranty in these terms was equivalent to the warranty set forth in the declaration. The jury having returned a verdict for the plaintiffs, the defendants moved for a new trial, partly on the ground of the misdirection of the judge in this particular.
    
      Phinney, for the defendants.
    A warranty should be proved as it is set forth in the declaration. Bristow v. Wright, Doug. 665; Snell v. Moses, l Johns. Rep. 96; King v. Pippet, 
      1 D. & E. 235; Parkinson v. Lee, 2 East, 314; Symonds v. Carr, 1 Campb. 361; Clarke v. Grey, 6 East, 564; Hands v. Burton, 9 East, 349. A warranty that the cards should be equal to any in America cannot be considered the same with a warranty that they should be good and merchantable, although an article agreeing with the former warranty might be superior to one agreeing with the latter. Proof which would support one of these warranties might not support the other. The best cards in America might not be merchantable.
    
      Webster, for the plaintiffs.
    In an action on a contract, the party may declare upon the meaning of it. He may set out a part only of the contract and recover. It is true, he must set out the whole of the consideration for that part. The object of the plaintiffs was to purchase good cards; they did not want the very best. Neither did the defendants want to sell any but such as were of the ordinary quality. The expression in the advertisement is equivalent to the word warranted simply; which means that the article should be of the ordinary quality What would have been the result, if the defendants had proved that the cards sold were as good as other cards usually are, and the plaintiffs had proved, that, in some particular place in America, cards of an extraordinary good quality were manufactured ? Would this show that the warranty had been broken? A common advertisement is not to be viewed with as much strictness as a deed indented. It was a question for the jury to determine, whether the cards were not warranted to be of the ordinary quality, and they have found for the plaintiffs. The warranty, indeed, set out in the declaration is not so strong as that in the advertisement, but it is not for the defendants to make this an objection. The plaintiffs have taken the substantial port, and a recovery here will be a bar to any future action on the warranty.
   The cause was continued nisi for advisement, and at the following March term, at Concord, the Court granted a new trial, on account of variance between the warranty alleged m the declaration and the contract proved. 
      
       See Robbins v. Otis, post, 368; Hastings v. Lovering, 2 Pick. 214; Commonwealth v Whitmarsh, 4 Pick. 233; Baylies v. Fettyplace, 7 Mass. R 325; 
        United States v. Lakeman, 2 Mason, 229. Evidence that the defendant sent treasury notes by mail, does not support an allegation that he sent cash, Frouguet v. Headley, 3 Conn. R. 534. A declaration on a promise to deliver good merchantable wheat is not supported by evidence of an agreement to deliver good second sort of wheat. Anon. 1 Ld. Raym. 735. So, an agreement alleged to be for the sale to the plaintiff of merchandizable skins varies from an agreement for the sale of merchandizable calf skins. Anon. Buffer’s N. P. 145. So a contract to deliver soil or breeze varies from a contract to deliver soil only; soil and breeze being different things. Cooke v. Munstone, 4 Bos. & Pul. 351; Clarke v. Munstone, 5 Esp. R. 239. An allegation in a declara» tian, that the plaintiff lent a horse, is supported by evidence that he lent a mare. Ware v. Juda, 2 Car. & P. 351. So, evidence of the trover and conversion of a gelding will support a count in trover for a horse. Gravely v. Ford, 2 Ld. Raym. 1209, and cases cited. An allegation of a contract for the delivery ot gum Senegal is supported by evidence of a contract for the delivery of rough gum Senegal, coupled with evidence, that all gum Senegal, on its arrival in England, is called rough. Silvery v. Heseltine, 1 Chitty’s R. 39. A justification by the lord of a manor, under a custom, that the lord should have the best beast on the tenant’s death, is not proved by evidence, that he ought to have the best beast or good. Adderly v. Hart, cited 3 Stark. on Ev. 1549. See also Hockin v. Cooke, 4 T. R. 314. Harrington v. Morris, 5 Taunt. 228; Kearney v. King, 1 Chitty’s R. 28, and 2B. & Ald. 301; Savage v. Maguire, 1 Batty, 280 Sproule v. Legge, 2 Dowl. & R. 15; S. C. 1 Barn. & C. 16; Thornton v Kempster, 1 Marsh. 355; Parker v. Palmer, 4 B. & Ald. 387.
     