The declaration avers the defendant’s promise to pay for certain merchandise when delivered at a time and place named. It also avers a sxxbsequent verbal agreement between the parties, without stating any time or place when the same was made, that the place of delivexy of the merchandise should be changed, and that defendant refused to accept delivery there when tendered, and to pay for the same.
The demurrer calls for an averment of time when the supposed verbal agreement was made.
The plaintiff contends that the supposed verbal agreement amounted to no more than a waiver of the place of delivery originally agreed to, and need not be averred at all; and that the supposed defective part of the declaration may properly be rejected as surplusage.
The argument is plausible, but not sound; for the declaration admits that defendant refused to accede to a sxibstituted place of delivery and accept the goods. He may have agreed to waive the place of delivery, but have refused to waive it. Waiver and an agreement to waive are not the same thing. The former may result from the latter, but the latter can not serve the purpose of the former, except it be execxrted, or a breach of it operate by estoppel to woxk a waiver, because of the breach.
The declaration avers an agreement to waive the place of delivery, and a refusal to keep the agreement. The only waiver in the case, that can arise, is because the defendant may have agreed to substitute a new place of delivery, and have refused to abide by his agreement, whereby he would become estopped from insisting upon the place of delivery originally named.
Whether such an agreement was made is a question of fact. It must be proved before the plaintiff can recover. It is material and traversable; and all traversable facts must be laid upon some particular day. Platt v. Jones, 59 Maine, 232; Gilmore v. Mathews, 67 Maine, 517 ; Shorey v. Chandler, 80 Maine, 409.
If the supposed verbal agreement were treated as surplusage, *62the plaintiff would, be no better off; for then his declaration would show an agreement to deliver the goods at a place certain, a prerequisite to his right of recovery, and an averment of a tendered delivery at a different place.
Exceptions sustained. Eemurrer sustained.
Plaintiff may amend on statute terms.
Walton, Daneorth, Virgin, Emery and Foster, JJ., concurred.