It is clear upon the evidence, that the plain tiff cannot recover upon his first count, for goods sold' and *173delivered, bee ause as to that portion of the leather now sued for, it was never delivered.
In the second count he. sets out an executory contract, by the defendant, to accept and pay for a certain lot, to wit, 276 sides sole leather &c., the weight to be determined by the inspection. The proof is, that the defendant agreed to purchase a certain lot of leather then in the vats, and to accept and pay for all that portion of the lot, which on inspection should be approved and marked as “ Good.” ■ There is a fatal variance between the contract declared on, and the contract proved, and the verdict must be set aside. Penny v. Porter, 2 East, 2.
New trial granted.