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 *376for 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.