
    John S. Mulford vs. Smith Bowen.
    If there is a substantial variance between the agreement set forth in the state of demand and that which is proved to have been entered into by the parties, the variance is fatal, and the plaintiff cannot recover.
    This was a certiorari to the Common Pleas of Cumberland, to reverse a judgment rendered on an appeal against Mulford, the plaintiff in certiorari, in favor of Bowen, in an action of debt upon the following state of demand, viz: Smith Bowen demands of John S. Mulford, thirty dollars and fifty cents, for that whereas heretofore, viz : on the first day of April, 1823, at Bridgeton, in the county aforesaid, and within the jurisdiction of this court, plaintiff and defendant made a certain agreement, in writing, as follows:
    
      “ I promise to pay John S. Mulford twenty-five dollars, if a certain hog that is now owned by Isaac Sutton, should after being cleaned and dressed in the usual manner, weigh eight hundred and fifty pounds. If said hog does not weigh as above stated, then I, John S. Mulford, promise to pay Smith Bowen twenty-five dollars. The said hog is to be killed by the twentieth day of March, one thousand eight hundred and twenty-four; the money to he paid in thirty days of the twentieth of March, 1824.
    [Signed,] “ Smith Bowen,
    John S. Mulford.”
    “ It is understood by the parties that if the above hog should die, then the above to be void.”
    *316] * Which agreement so made as aforesaid, of the tenor and effect aforesaid, and signed as aforesaid, plaintiff now brings into court. And plaintiff saj^s he has done all on his part to be done under or by virtue of said agreement, and plaintiff says that said hog was killed by the twentieth day of March, 1824, viz : on the first day of January, 1824, and that he did not weigh as above stated, after being cleaned and dressed in the usual manner, eight hundred and fifty pounds, but only about seven hundred pounds; of all which premises defendant had due notice, and by reason of which premisos an action hath accrued to plaintiff to have and demand the said sum of twenty-five dollars, with interest from the twentieth of April, 1824, in all thirty dollars. And plaintiff also avers that said hog did not die by accident or sickness, as meant in the note annexed to said agreement as above shewn, in which case said agreement was to bo void, but that he was killed as aforesaid, for the purpose of making pork of him, according to the true intent of said agreement.
    The following is the statement of the case agreed upon by the counsel of the parties to bo used upon the argument of the certiorari, viz:
    Ephraim Dayton, a witness on the part of Bowen, the plaintiff below being duly sworn, said : The agreement produced is my hand writing. I can’t say certainly that I saw both the parties sign it. I was in the bar when it was dono. I wrote it at their request. I think it was about the first of xlpril, 1823. It was some time after Norton Harris’ big hog was killed. It was after Sutton had concluded to keep his hog over another season. I don’t know Mulford’s hand writing. The name, Smith Bowen, to the agreement, is the plaintiff’s writing.
    And being cross-examined by defendant—
    I don’t recollect anything about the memorandum at the bottom. There was considerable talk between the parties at the time of the bet. Can’t recollect what was particularly said by them. I did not hear Mulford say he did not consider it as a bet unless the hog was kept till the twentieth of March, 1824, or anything of that kind. I don’t know what Mr. Bowen’s hog weighed when he killed him. Mr. Harris’ hog was killed about the fourth of March, and this hot was afterwards three or four weeks. I knew some time before Harris killed his hog, that Mr. Sutton had talked about keeping his hog over, but soon afterwards *317] I understood he *had concluded to do so. I can’t recollect -who was present when the agreement was signed, but about that time Mr. John Johnson came in, and after it was signed it was given to him to keep. I handed it to Johnson before it was signed, and I believe he saw them sign it.
    
      John Johnson, sworn for plaintiff,
    said, I came into the hotel and Ephraim Dayton handed an agreement to me; it was not then signed. Both parties then signed it on the desk, after telling me what it was, and so forth. They signed it on the desk. At their mutual request I took up the paper. I wrote the note at the bottom. I do not recollect that either of them particularly requested it' to be done, but it was according to the talk and agreement at the time. It was what they agreed upon. I don’t remember whether I read it to them afterwards or not. There was a good deal of talk, but the agreement was finally as it reads, note and all. I don’t think Isaac Sutton was there. Ho exception was made, unless the hog was taken sick, and died by accident, which is what the note means. I thought it as fair an agreement as ever was made, and that they understood it."
    And being cross-examined by defendant, says, I did not hear Mulford say, if the hog was killed before the twentieth of March, 1824, it was to be no bet.' Hor did I understand it so. It was after Harris’ hog was killed, and about the last of March or first of April. From their talk and agreement I should say, if the hog had been killed for pork in one week afterwards, I should have considered the bet as lost by Mulford, if he did not weigh the amount. I expected him and Sutton had an understanding or dependence on each other, and perhaps he thought Sutton would keep his hog over till the twentieth of March. It was thought the hog was going to be kept over another season at that time, by most people. I do not know as it was known certainly by Mr. Bowen. lie was willing, however, he should be kept over one season more, but no longer; and that was what I understood was meant by putting in the date. The hog was kept over; he was killed the next new , year’s.
    
      Isaac Sutton was examined as a witness on the part of the plaintiff.
    Ilis testimony is not necessary to bo stated here.
    The defendant, on the trial of said appeal, objected to the admission of Ephraim Dayton, John Johnson and Isaac Sutton, as witnesses, upon their being offered to prove what they depose to in *their several examinations in chief [*318 by the plaintiff; and likewise objected to tho admission in evidence on the part of the plaintiff of the said agreement or paper, contending the same was illegal, incompetent and inadmissible evidence in this cause, and variant from the state of demand; which objections were overruled by the court.
    
      L. Q. C. Elmer argued for the plaintiff in certiorari.
    
      Wall for the defendant.
    Tho reasons relied upon by the plaintiff's counsel for the reversal of tho judgment of the Common Pleas, were- -
    1. That the demand was insufficient.
    2. That the court admitted illegal evidence.
    3. That there was a material variance between the contract declared on and that given in evidence.
   The Chief Justice delivered the opinion of the court.

The objection taken in the court below, on account of the variance between the agreement set forth in the state of demand, and that which was proved to have been entered into by the parties, ought to have been sustained. The variance is fatal. The plaintiff did not undertake to set out the agreement according to its legal effect, but by its tenor. He alleged that a certain specified agreement was expressly and in writing entered into by the parties. On his evidence it appeared that the agreement actually contained but part of what he had alleged, and the part not proved was a condition on which the contract might become void. It is no answer to say this part was in a nota bene, and after the signature of the parties; for the plaintiff not only set it forth as part of the agreement actually made, but among his averments to shew his right to recover, he has introduced one founded upon this part of the agreement. Nor does it avail any thing to say this clause contains no more than a qualification which the law itself annexed to the contract. Eor it is set forth as expressly made, and not as implied by law. The written agreement of the parties is described as having actually contained this clause.

Let the judgment be reversed.  