
    Stone vs. Knowlton.
    ^contractin io transport fifteen or twenty tons of mar-Me from one e^mustbesta" ted in the dec(hngIOnt0aCCt]ie terms of it. If absolute^com tract for the of twenty tons, and not fifteen or twenty tons, the variance
    aconsideration in a^ditio™'to ,the true consiingtheretonot supported by the proof, will be cause of nonsuit.
    This was an action of assumpsit, tried at the Cayuga circuit in January, 1829, before the Hon. Daniel Mosely, one 0f tfie circuit judges. J °
    The plaintiff declared for that whereas the defendant on, <^Cl a^> &c'in consideration that he (the plaintiff) would pay to the defendant a certain sum of money, to wit, the sum- of $35, and at the special instance and request of the defendant agreed to pay the defendant at a certain rate, to wit, at the. rate °f three dollars per ton, and such canal toll as should be charged to, and paid by the defendant, for and on account of the transportation of the marble hereinafter mentioned, when marble hereinafter mentioned should be delivered at Weedsport, in the county of Cayuga, he, the said defendant, undertook and agreed with the plaintiff that he would carry and transport a certain quantity, to wit,, twenty tons of marble °f the said plaintiff from Fort Ann, in the county of Washington, to Weedsport, in the county of Cayuga, and to deli-ver the same at Weedsport aforesaid". Thenfollowedan averment of the payment of $35, the breach of the contract, and , ". common conclusion.
    The contract proved on the trial was, that the defendant agreed to transport fifteen or twenty tons of marble for the plaintiff from Fort. Ann, in Washington county, to Weedsport, in the county of Cayuga; and that the plaintiff agreed to pay the canal toll chargeable on the marble, and three dollars per ton; the plaintiff to pay $35 down towards the toll, the defendant to keep an account of the toll, and if the $35 was not enough to pay the toll, the plaintiff to pay the defendant the balance, and if more than enough, the defendant to refund the surplus.
    The defendant’s counsel moved that the plaintiff be non-suited for variances between the contract as proved and as set forth in the declaration. The motion for a nonsuit was denied. The plaintiff then gave evidence as to the damages sustained by him, and the jury found a verdict for the plaintiff for $250 ; which was now moved to be set aside.
    
      M. T. Reynolds, for the defendant.
    /. T. B. Van Vechten, for the plaintiff.
   By the Court,

Marcy, J.

The motion for a nonsuit, I think, was improperly overruled. It seems to be well settled that where the contract is in the alternative, and not so set out in the declaration, the variance is material. In the case of Penny v. Porter, (2 East, 2,) where the contract for the delivery of one hundred bags of wheat, forty or fifty to be delivered at a particular time, at the option of the defendant, and the defendant afterwards elected to deliver forty, was declared on as a contract for the absolute delivery of forty bags, the variance was held to be fatal. The case of Tate v. Whellings, (3 T. R. 531,) is also an authority to show that this variance is material.

Another variance insisted on by the defendant is still more substantial and manifest. . The declaration states that in consideration of thirty five dollars to be paid by the plaintiff, and the agreement of the plaintiff to pay the defendant three dollars per ton, and such canal toll as should be charged to the defendant, the defendant agreed to transport twenty tons of marble from Fort Ann to Weedsport. The agreement proved was to transport twenty tons for thee dollars per ton and the tolls, and that the thirty five dollars should be advanced toward the tolls. From the declaration it appears that' the thirty five dollars were paid as a part consideration for the service to be performed, and beyond the tolls and three dollars per ton; whereas by the proof it is shewn that the thirty five dollars were only an advance towards the toll.

Motion for a new trial granted.  