The opinion of the court was delivered by
Peck, J.The action is for fraudulent representations and concealment on the part of the defendant in the alleged contract. It appears that the contract was in writing, and the written contract was given in evidence.
As to the question of variance between the contract proved and that declared upon, the defendant insists that there is a fatal variance in the amount of the consideration. The declaration alleges that the plaintiff “ paid the defendant a large sum of money, to wit, the sum of three hundred dollars.” This agrees precisely with the amount of the consideration specified in the written contract. There is, therefore, no variance in this respect between the allegation and the written contract. The parol evidence on the part of the plaintiff shows that he was to pay, and did pay, three hundred and fifty dollars. But the exceptions show that at the jury trial, “ the defendant’s counsel insisted that there was a-variance between the written contract and the declaration,” and that the court ruled that there was no substantial variance, — to which ruling the defendant excepted. It does not appear that any question was raised or exception taken in reference to the parol proof of the payment of $350. The exception must be confined to a variance between the declaration and the written contract ; and in relation to the consideration there is no such variance. *283But, aside from tlie fact that the exception is confined to the written contract in an action of this kind, considering the manner in which the consideration is alleged in this declaration, it is not one'of those descriptive allegations that need be proved in amount precisely as alleged. This is not an action directly upon the contract, but ap action of tort growing out of the contract. If this were an action in favor of Leach agaiust Gotleib to recover .the stipulated price, declaring specially on the contract, a more strict rule would apply.
It is insisted that the declaration alleges that the plaintiff purchased of the defendant an interest in the wheel or machine, and that the contract proved shows that he did not purchase any interest in, or title to, the wheel or machine, but only the defendant’s interest, to a given extent, in a certain contract between the defendant and Young & Haskins, under which last named contract the defendant was to furnish the machine to Young & Haskins, tfrho were to exhibit it for money, and pay to the plaintiff a certain portion of the gross proceeds, and that in this there is a variance. It is urged that the purchase of an interest in that contract, is not a purchase of an interest in the machine within the meaning of the declaration. Immediately after the general allegation of the purchase of an interest in the wheel, machine or invention, it is alleged that by which contract, (between the plaintiff and the defendant,) • said machine or invention was to be exhibited to the public for money, and of the proceeds the plaintiff to have one-third until he should receive $300, and after-wards one-sixth. The argument, on the part of the plaintiff in answer to this objection, is, that by the contract, as proved, it appears that by the defendant’s contract with Young & Haskins, the defendant is to have one-third of the proceeds ; and that by the contract between the plaintiff and the defendant, as proved, the plaintiff is to have the whole of the share the plaintiff is entitled to from Young & Haskins till the plaintiff shall have received $300., and afterwards one-half that the defendant is entitled to under his contract with Young & Haskins ; so that, under the contract, as proved, the plaintiff gets the same proportion of the proceeds as he does under the contract alleged in the declaration, and that the two are the same iu legal effect. Whether this argument, if well founded in fact, would, *284in law, obviate this objection, it is not necessary to decide, for it is based on an erroneous assumption of fact. By the contract as alleged the plaintiff is entitled to one-third of the proceeds till he has received $300., and after that to one-sixth. But, under the contract between the defendant and Young & Haskins, the defendant is entitled to nothing until Young & Haskins have received $150., out of the proceeds, to their own use ; consequently, under the contract proved between the plaintiff and the defendant, the plaintiff, instead of receiving one-third of the proceeds until he has received $300., is not entitled to any portion of the proceeds until Young & Haskins have received their $150. In this particular there is a variance in a material descriptive allegation of the contract. The contract proved is less beneficial to the plaintiff than that alleged, and in a particular which might materially affect the amount of damages the plaintiff would be entitled to recover. "We have felt reluctant to reverse this judgment upon a question of variance not affecting the merits of the case, especially as the objection is one that might properly have been obviated by an amendment on the trial; but it is impossible to sustain the ruling of the county court without violating the principles of pleading and evidence.
The only remaining exception relied on in argument is to the admission of certain evidence offered by the plaintiff and admitted by the court. It appears that the plaintiff’s testimony tended to show that the defendant represented to the plaintiff, at the time of making the contract, that the balls attached to the wheel were the motive power of the machine, that the balls were so arranged with reference to the rim of the wheel, that the wheel, by the power of the balls, would continue to revolve until the machine was worn out; that it was a valuable invention and machine, and perpetual motion ; and that after the trade was made, and the $350. had beén paid, the defendant showed the plaintiff that the motive power was springs and clock work, concealed from view in the bottom of the machine, of which, till then, the plaintiff was ignorant. The defendant’s evidence tended to show to the contrary, and that he explained all this to the plaintiff before the trade was made. The case further shows that the defendant’s testimony also tended to show that he exhibited *285the machine in different places prior to making the trade with the plaintiff, and that he did not on any occasion when he exhibited the machine, say the motive power was in the rim of the wheel, or in the balls, or that it was perpetual motion ; but stated that the people present must judge for themselves as to the motive power. This evidence, being put in by the defendant, as to what took place when the plaintiff was not present, it would not be error to allow the plaintiff to disprove it; more especially if the defendant himself was the witness by whom the defence had attempted to prove what took place on such public occasions. The proof offered by the plaintiff to the effect that the defendant, on several occasions when he exhibited the machine prior to the trade with the plaintiff, stated that the motive power of the machine was in the balls attached to the wheel, and that it was perpetual motion, was admitted by the court against the defendant’s objection that the plaintiff was not present. The exception is to the admission of this testimony. If it was admissible for any purpose, this exception cannot prevail. We think it was not error to admit this evidence after the evidence above stated was put in on the part of the defence ; we infer it was after, from the order in which the evidence is stated in the exceptions. The exception taken to the charge is not insisted on in argument. Nor is there any ground of exception to the charge upon this testimony, for the court told the jury that those statements made by the defendant when the plaintiff was not present, in relation to the machine or its motive power, did not tend to show what contract the defendant made with the plaintiff, or what statements or representations the defendant made to the plaintiff before or at the time the trade was made with the plaintiff, or to show that he made any representations to the plaintiff as to the motive power of the machine.
Judgment reversed and new trial granted.