The plaintiff’s declaration sets forth an executory agreement of the defendant to do certain work for a certain sum, and within a certain time, on materials to be furnished by the plaintiff, and alleges that the plaintiff did furnish the materials to the defendant in season for him to complete the stipulated work within the stipulated time. And the question is, whether this declaration was legally proved by evidence that the plaintiff furnished the materials to the defendant, but not in season for him to complete the work *51thereon according to the agreement, and that the defendant nevertheless received and worked on them. We are of opinion that it was not; but that there was a fatal variance between the allegation and the proof.
It is a cardinal rule of evidence, that allegations essential to the plaintiff’s claim must be proved. In the declaration in this case, it was essential, in order to show the plaintiff’s claim, that he should allege that he furnished or was ready to furnish the defendant with the materials on which he was to work, and in season for him to complete the work on them within the stipulated time; or else that he should allege a sufficient excuse for not so furnishing them. 1 Chit. Pl. (6th Am. ed.) 351, 358; 6 Greenl. 111, 112; 2 Met. 502, 503. The plaintiff has adopted the former course, and has alleged his performance of what the agreement required of him; and to prove this allegation, he relies on evidence of matter which excused him from such performance, to wit, a waiver thereof by the defendant. But a waiver, by one party to an agreement, of the performance of a stipulation in his favor, is not a performance of that stipulation by the other party. It is an excuse for non-performance, and, as above stated, should be so pleaded.
The ground taken by the plaintiff is, that the defendant, by his conduct, waived his right to be furnished with the materials according to the agreement, and that proof of such waiver supports the averment that the plaintiff did furnish them according to the agreement. And two cases were cited, in which it was held that, in an action by the indorsee of a note against the indorser, the allegation, that notice was given to the defendant of non-payment by the promisor, was supported by proof that the defendant waived such notice. Those decisions have often been questioned, and are certainly contrary to the law as held in England. Burgh v. Legge, 5 Mees. & Welsb. 418; Chit. on Bills, (10th Am. ed.) 577. But supposing them to have been rightly decided, they only show a single exception to an established rule.
New trial granted.