By the Court,
Sutherland, J.I am inclined to think the plaintiff should "have been nonsuited on the ground of a variance between the contract proved, and that laid in the first count of the declaration. It is admitted that the recovery cannot be sustained under the 2d count, which is on an executed consideration. (1 Chitty’s Pl. 295 to 310.)
The first count states the contract on the part of the defendant to have been, to sell the oxen of the plaintiff for a reasonable reward, and to account for, and pay over to the plaintiff the proceeds. Under this contract, the defendant would have been justified, under the exercise of a sound discretion, in selling the cattle upon a reasonable credit. ‘ The evidence shows,.that at the time of the making of the contract, and of the delivery of the cattle to the defendants, they were instructed, by plaintiff’s agent, who made the contract, to sell for cash. The defendants having received the cattle under these instructions, thereby assented- to them, and their contract was a contract to sell for cash only. The instruc*493Sions being simultaneous with the delivery of the cattle, mi-questionably constituted a part of the agreement or contract between the parties. The declaration should then have stated it as a contract to sell for cash. The partnership of the . r r defendants was sufficiently proved. The evidence offered to show what a sale for cash was, according to. the usage of the New-York market, was properly rejected.
New trial granted on the ground of variance.