Per
McCully, J.I am of opinion that the case now comes before us on all the matters in the bill, and upon all the points in support of them, nothing having been formally waived. The case is now urged upon grounds which were not presented before the Chief Justice, and which probably change its aspect.
In my view, the variance between the contract declared on between the named heirs of Schriever of the one part and the defendant, and the contract proven of Glade, administrator, and the defendant, is sufficient ground for dismissing the bill. It need not, then, be added that the contract was not signed by the auctioneer, the agent of the parties, nor, if the heirs were not party to the contract, need it be considered whether the plaintiffs were proved to be such heirs.
I think there are sufficient reasons for dismissing the bill, and I concur in the decree to that effect.