In this court, the plaintiff moved for leave to amend his declaration, in case the court should be of opinion that there was a variance between the declaration and the offer of proof.
Metcalf, J.The plaintiff’s declaration alleges a contract with the defendant alone, and a sale to him alone, and sets out the terms and consideration of that contract and sale. To entitle the plaintiff to recover for a breach of that contract, it is necessary that he should sustain his declaration by proof of such a contract and sale as is therein alleged.
At the trial, a bill of sale was produced, which showed that the actual sale and transfer of the property, which the plaintiff *425had contracted to sell to the defendant only, was sold and transferred by the plaintiff to the defendant and Fiske, and not to the defendant alone. And the proof was, that the defendant and Fiske paid and secured to the plaintiff a part of the consideration, namely, the sum of twenty five hundred dollars.
The parol testimony, which was rejected, was offered for the purpose of showing a sale different from that which is alleged in the declaration, to wit, for the purpose of proving a sale and transfer, to the defendant and Fiske, of the plaintiff’s stable stock, for twenty five hundred dollars, and a promise, by the defendant alone, to pay therefor a further sum of one hundred and fifty dollars, on taking Fiske into partnership. Under the declaration filed by the plaintiff, this testimony was inadmissible, because it tended to prove a contract and sale different from that which the declaration alleged. It is on this ground of a variance between the allegations and the offered proof, that the ruling of the judge must be sustained.
Probably an amendment of the declaration would have been allowed, if it had been asked for at the trial. But it is too late to amend now, after a verdict has been returned for the defendant, under a ruling which was correct as the pleadings then stood. Exceptions overruled.