The opinion of the Court was delivered by
Royce, J.The evidence on triabwas not applicable to the general counts. There was neither a loan of money to the defendants, nor a payment to any other person, for their benefit,
There is no occasion to consider the special count, except in reference to the question of variance. The allegation is, that the defendants sold to the plaintiff a barrel of rum at the priee of fifty dollars, warranting the same to be good, &c. But the case in evidence was, that they sold him a barrel of St..Croix rum, at one dollar and six cents per gallon, and by mistake forwarded a''barrel of different and inferior rum, worth only sixty cents per gallon ; that on being informed of this, the defendants acknowledged their mistake, but requested the plaintiff to proceed and sell out the rum sent, and promised to make good the difference on their after settlement; that the plaintiff paid for the\ rum, at $1,06 per gallon, but whether before or after the arrangement for selling it out, did not appear. It is evident, therefore, that the case made in proof was entirely different from that stated in the special count. No warranty was shown', nor was the rum purchased by the barrel at a gross sum, but at a given price per gallon. This ground, alone, is quite sufficient to sustain the decision of the County Court.
Judgment affirmed.