dissented, and delivered the following opinion: The question to-be decided by the court, on the fifth exception, is, Whether the list or memorandum offered in evidence to prove the sale of the Brandy, and the price, was legal and competent evidence for that purpose? The material fact to be proved was the price for which the Brandy was sold, because on that depended the quantum of damages to be given by the jury.
The exception states, that-Patrick acted as clerk to Yates and Campbell, the auctioneers, who sold the Brandy; was present at the sale, and made the entries on the said list or memorandum by their order, from which the said entries were transferred to the books of Yates and Campbell, and that the said Patrick was dead.
Lord Gilbert, in his treatise on evidence, in page 16, explaining the rule of evidence he had before laid down, as the first and most signal, declares the true meaning of it to be, that no such evidence shall be given, which ex natura rei, or according to the nature of the transaction, supposes still a greater evidence behind in the parties possession or power.
The said rule, as explained and illustrated by Gilbert, Is certainly the true.rule, coincides with common sense, and is best adapted to the ascertainment of the truth of facts, and consequently most conducive to the promotion of justice.
The application of the rule depends on the nature of the case, and what is the best evidence in the power of the party to prove it.
The entries made by the clerk appointed for the purpose by the auctioneers, was the best evidence to prove the sale of the Brandy, to -whom made, and the price, which the nature of the transaction, as disclosed by the exception, was susceptible of.
*401No person could prove the said entries but the clerk, if living, that being the best evidence of it. The clerk being dead, the inferior or secondary evidence may be resorted to — the proof of his hand writing, which is proof of the entries made on it. Such was the decision of Lord Kenyon, in the case of Cooper vs. Marsden, 1 Esp. Rep. 1, where he said, “that the rule of evidence was clear, that entries in the books of bankers, or persons keeping books respecting their trade or business, could only be proved by the clerks who made the entries¡”
According to the nature of the transaction, the clerk is the only person who could be supposed to have an accurate knowledge of the sale, the price, and the person to whom sold, and his testimony is the best evidence; and according to the nature of the case, no presumption arises that there is a greater evidence in the power or possession of the party to exclude the proof of the hand-writing of the clerk.
It is possible Yates or Campbell, or sortie of the persons present at the sale, might have had a knowledge of it, and the price; and if they had, they might have been examined to corroborate the evidence of the clerk, or to contradict it; and if examined by the adverse party, to contradict it, the question would be for the jury to determine on the respective credit of the witnesses, and could in no wise affect the competency of the. testimony offered.
The memorandum or list of the clerk, appointed for the ■purpose, on which he made entries at the time of the sale from the mouth of the auctioneers, and according to directions publicly announced in the auction room, must be better evidence than the frail and fallible recollection, of the auctioneer, who cannot be supposed, in the midst of a multiplicity of transactions in the course of a day, after a short lapse of time, to remember the sale of a particular Jot of goods, the time when sold, the price, and the person to whom sold — all the above circumstances will appear on the memorandum or list of the clerk.
The law in requiring the best evidence, does not require all the evidence which might be given; for instance, if there are two witnesses to a deed, or a dozen present at the making of a verbal contract, the evidence of any one;, while un» contradicted, is sufficient. Peake's Evid. 7.
*402The case of Price vs. Lord Torrington, 1 Salk. 285, W tnove liable to objection than the present case. The clerk* Who Made the entry, had iio knowledge of the delivery of the beér, but from the report of the drayman; but the clerk* Who made the entry in this cáse* was appointed for the ptitpOSe, Was present at the safe, and made the entry by the direction of the auctioneer, on his proclaiming the highest bidder, and the price, and having himself a knowledge' of the salé.
According to the nature of the transaction in both cases, no person but the drayman could be supposed to be privy to the delivery of the beer, and no person could be supposed to have a knowledge of the sale and price but the clerk.
The case ttfider consideration is similar, of nearly so, to the case of Pitman vs. Maddox, 2 Salk. 690, in which, on proving the hand-writing of the tailor’s servant, who was accustomed to make entries in the shop book, he being dead, the shop book wa9 allowed to be evidence, as no other person could be supposed to be conusant of the delivery of the clothes. The chief justice likened it to the case of proving the hand-writing of a witness to an obligation.
' The case of Smartle vs. Williams, must have beeif decided on the ground, that the scrivener acted as clerk or agent of the mortgagee, and had power to receive the money, and on that supposition, the resemblance in the leading circumstances to the present case is very obvious, and without the aid of such supposition the decision cannot be law.
The judgment in Williams vs. The East India Company, 8 East, 192, is certainly good law, but the case is not analogous to the present.
In that case it was decided tobe incumbent on the plaintiff to prove the want of notice or information of the inflammable quality of Eoghan, There were only two persons who were privy to the transaction; the military conductor who delivered the Eoghan, and the chief mate who received it ánd stowed it away; either of whom could have proved whether notice Was given or not. The chief mate was dead, but the military conductor was living, and the prima facie, or secondary evidence, was rejected, because it appeared, by the transaction disclosed in proof, that the plaintiff' had greater evidence in his power.
*403In the case of Warren vs. Greenville, 2 Strange, 1129, although in the opinion of the court the evidence offered to fortify the presumption arising from length of time was not necessary, yet they declared it to be legal and admissible. The entries in the attorney’s debt book, who drew the common recovery and surrender, were read and admitted as evidence, on the ground he was employed to draw them, and being dead, the proof of his hand-writing was the best evidence, because, if living, he could have proved those circumstances.
In this case the entries, when proved, are evidence, because made by authority, and by the person appointed clerk for that purpose. The cases generally in which a memorandum in writing is resorted to for the purpose of refreshing the memory, are those where it is made by the witness of his own aecord, without authority, and merely to perpetuate the remembrance of the'transaction, that he may relate it accurately in case he should be called on, and not doné by him as an agent in the usual course of business. In such cases tiie memorandum is not evidence.
I am of opinion the judgment of the General Court be affirmed.
Nicholson, J. consurred with the Chief Justice.judgment reversed, and procedendo awarded.
At the new trial in the County Court in March 1809, the plaintiffs, (now appellees,) gave in evidence the letter from the plaintiffs to the defendant of the 27th of July 1795, and the one from the defendant to the plaintiffs of the same day, and that the ship Jinn in the contract mentioned, did arrive at the port of Baltimore within six weeks from th© date of the said contract, with a cargo of 111 pipes of Brandy on board, the property of the plaintiffs, part of which, to wit, nine pipes, were imported for the plaintiffs’ own use; that there were also on board of the said ship 38 pipes of Brandy belonging to other persons than the plaintiffs; that the said 102 pipes of Brandy, immediately on their being landed from on board the ship, were sent by th© plaintiffs to the defendant’s warehouse, where it was received by a clerk of the defendant, the defendant being then in Philadelphia% that the defendant, on his return to Baltimore, after an examination of the Brandy, refused to comply with his contract, an4 in consequence thereof $ *404dispute arose between the plaintiffs and defendant respect* ing the Brandy; whereupon they agreed to submit the settlement of said dispute to John Strieker and John Holmes, And gave in evidence the following letters containing the submission, viz. one from the defendant to the plaintiffs, dated the 17th of August 1795; another from the plaintiffs to the defendant of the same day; another from the defendant to the plaintiffs of the 18th of August 1795; another from the plaintiffs to the defendant of the same day; another from the defendant to the plaintiffs of the 19th of August 1795; another from the plaintiffs to the defendant of the same day; and another from the defendant to the plaintiffs of the same day, And that the said arbitrators'took upon themselves the burthen of arbitrating between the parties, and after full hearing of each party, did make an award on the 22d of August 1795, and which was given in evidence. The plaintiffs further gave in evidence, that after the award was made and delivered to the defendant, the plain tiffs applied to the defendant, on Saturday th# 10th'of October in the year aforesaid, to know whether ha would retain the Brandy on the terms of the contract and awaid made by the arbitrators; that the defendant replied that he would not; that he had never considered the Brandy as his, and that the plaintiffs might bfive it whenever they chose; that thereupon the plaintiffs informed the defendant, that unless he'took the Brandy according to the contract and award, that they would, bn the Monday following, take it away and send it to be sold at auction on the account of the defendant,-and would consider him as responsible for the difference between the price fpr which it would sell, and the sum which by the contract and award the defendant was to give for it.' And that the plaintiffs did send to the defendant an order, in writing, for the delivery of the Brandy, dated the 12th of October 1795. And did, on the same day accordingly, on the Monday following, take the Brandy away from' the warehouse of the defendant, and sent the sanie to Messrs, fates and Campbell, then being auctioneers in the city of Baltimore, by whom it was sold at auction on a credit of 4 anil 6 months, for a less sum than that for .which the defendant agreed to give for it. The defendant theft prayed the opinion of the court, find their direction to the jury; that the act of the plaintiffs in taking away and selling the Brandy, did in law absolve *405iba defendant from any responsibility to the plaintiffs, under or by reason of the said award and contract. Hut the Court, [Nicholson, Ch, J.] refused to give the direction. The defendant excepted.
The cause was argued af this term before Buchanan, Eabxe, and Johnson, J. Key, W. Dorsey;and Harper., for the Appellant,contended, 1= That neither of the cou.nts in the declaration was sufii*406cient to support the plaintiffs’ action, as no valid judgment could be entered thereon.
*4052. The defendant then gave in evidence, that there were imported by the plaintiffs in the ship Ann, at the time aforesaid, over and above the quantity of Brandy meant to be sold, the quantity/ of nine pipes of Brandy for their own use, being the Brandy nieant and alluded to in that part of the letter of July 27, 1795, from the plaintiffs to the defendant, which is in the following words, viz. “Exclusive of some old Cogniac we have on board, which is pot meant to be sold.” The defendant then prayed <lie opinion of the court to the jury, that on the evidence so given by the plaintiffs and the defendant, the plaintiff's were qpt in law-entitled to recover on the second count in their declaration. This direction the court refused to give, The defendant excepted,
S. The defendant further prayed the opinion of the court to the jury, that the letters between the plaintiffs and the defendant, produced by the plaintiffs as containing the submission of the parties to an aibitration, which letters are six in number, and bear date on the 17th, 18th, and 19th of August 1795, respectively, did not authorise the arbitrators to make and return the award aforesaid, in that part of it which relates to the defendant’s giving an en», dorser to the plaintiffs. But the court refused to give the direction. The defendant excepted,
4. The plaintiffs then gave ip evidence, that all the letters herein before referred to, were laid before the arbitrators before they made the award given in evidence. The defendant then further prayed the opinion of the court to the jury, that the plaintiffs are not entitled to recover on the first count in the declaration. This direction the comí also refused to give. The defendant excepted: and the verdict being for the plaintiffs, he appealed to this court.
*4062. That the award was not a good one in point of law, and it was not helped by the averments in the declaration.
3. That the plaintiffs taking the brandy Out of the possession of the defendant, as stated in the Jirst bill of exceptions, absolved the defendant from all liability on account of it.
4. That the refusal of the court below, as expressed in the second bill of exceptions, to direct the jury that the plaintiffs could not recover on the second count in the declaration, was erroneous.
5. That the submission did not authorise the arbitrators to award that the defendant should give an endorser; and that the court below ought to have directed the jury agreeably to the defendant’s prayer as stated in the third bill of exceptions.
6. That the court below ought to have directed the jury agreeably to the defendant’s prayer in the fourth bill of exceptions, that the plaintiffs were not entitled to recover on the first count in the declaration.
On the first and second points they argued, that the award was not a good one in point of law; that every award must be certain, and to ascertain that which was before uncertain, it might be made good by reference to something that was certain. Here the first count in the declaration stated that the award was that the defendant should take 90 pipes, &c. of Brandy, and that he ought fo give an endorser as per agreement, &c. and there is no averment what the agreement was to which the award referred. They cited Kyd on ¿¡wards, 138,132, That in the second count -there is no averment of what quantity of Brandy was contained in the 9.0 pipes, which was material to be ascertained, as the defendant was to pay a particular price per gallon, so that the extent of the defendant’s liability was not stated.
. On the third point they contended, that it was a clear rule of law with respect to contracts, that where one of the parties disabled the other from performing, he could not recover. The contract here was put an end to by the plaintiffs, who might have recovered if the Brandy had not been taken out of the defendant’s possession. That act of theirs, rescinded the contract, It was pot a case where a *407resale was authorised so as to bind the defendant fot* any deficiency.
On Was fourth point they contended* that the proof offered in evidence did not support the second count in the declaration; add that the principle of law was, that the plai n - tiffs must prove the contratít as laid. They referred to 1 Esp. Dig. tit. Assumpsit (139) 262. This count states* that the defendant was to have whatever Brandy the plaintiffs might have on board the vessel; arid the proof is that he was not to have the whole.
On the sixth point they argued, that the plaintiff could Hot connect the agreement stated in the first count with that stated in the Second; but if it is Connected as matter of substance and not inducement, then the contract stated* being contrary to the proof, cannot aid it. The contract being stated must be proved as laid. They cited Bristow vs. Wright, Doug. 665; and 1 Chitty's Plead. 304.
Martin, Pinkney (Attorney General of U. S.,) and Purvidnee, for the Appellees,on the first, point contended, that if there was any defect in the declaration it was cured after verdict, They referred to 1 Com. Dig. 137. 5 Com. Dig. 342, 354. Rushton vs. Aspinal, Dougl. 683. 1 Chitty's Plead. 298, 306; and Peppin vs. Solomons, 5 T. R. 496.
On the third point they referred to 1 Esp. Dig. (18) 50. Sands vs. Taylor, 5 Johns. Rep. 395.
Buchanan, J.delivered the opinion of the court. This case is brought up on four bills of exceptions. The question on the first of which is, Whether the contract between the parties was rescinded by the act of the plaintiffs lu removing the Brandy, which formed the subject of the agreement, from th'e warehouse of the defendant, and exposing it to sale at public auction? In deciding fins question we feel no difficulty. The Brandy was taken from the defendatit’s warehouse with his knowledge and acquiescence, not with a view to rescind the contract, but because he had refused to keep it, arid the sale at auction was resorted to as a criterion by which to ascertain the quantum of injury the plaintiffs had sustained by the defendant’s violation of his engagement. By the refusal of the defendant to receive it, the Brandy remained the property of the *408plaintiffs, who had a right to dispose of it as they pleased — m the removal and sale, therefore, did not operate in daw to rescind the contract. The defendant had notice of the course they meant to pursue, and with a full- knowledge of their object and intention in taking it away, consented to. the removal of it. If an action had been brought to recover the price of the Brandy delivered, the removal and sale by the plaintiffs would have been a good defence, for the . value could not be demanded when title party was depriv- ' ed of the article itself. But this suit is not for the price of the Brandy; it is founded on the refusal of the defendant to receive it according to the terms of his agreement, and the object is. to recover damages for that violation of his contract, from a liability to which the-defendant was not absolved by the act of the plaintiff in taking awayand selling the Brandy. V/e therefore concur in opinion with the court below on the first bill of exceptions — But differ from that court in the opinion to which tile second bill of exceptions is taken.
Inactions founded on contracts,the contract mupt be set-out, cither in the words in vtrhich it is made, or according to the tegal effect; and contracts beingin their nature entire, if the contract proved, and that declared upon, be different in any part, the Variance is fatal. The second count in the declaration is on a special agreement. The letter from the plaintiffs of the 27th July 1795, and the answer from the defendant of the same date, taken together, form the con-., tract between the parties; and it deafly appears from those letters to have been their intention to except from their a-' greement the Cogniac which was on board the ship Ann. In the contract set out in the declaration there is-no such exception, but the agreement is stated to have been for “whatever Brandy the plaintiff might have on board the Ann.” There is an evident variance, therefore, between the contract declared upon, and that given in evidence at the trial, which we think fatal, and. are of opinion that the plaintiffs were not entitled to recover on the second count in the declaration.
The question on the third bill of exceptions is too plain to admit a doubt. Upon the slightest examination of the correspondence between the parties, relative to a reference of the subject of dispute, it will appear that the whole matter in controversy was submitted to the arbitrators, and that *409the award is within the submission. The third hill of exceptions therefore fails.
The. fourth bill oí exceptions presents the same question that ' - in vul veil in the se.coud, an d the same varían ce appears between the allegation and the proof. But it is said that the agreement set out in the first count in the declaration, being only stated as inducement, the same exact certainty is not required as if the action had been founded on the contract itself. But whatever is alleged as inducement, and is not impertinent and foreign to the cause, must be proved as alleged; and when a contract is alleged and described, a variance is equally fatal, whether the action bo «pon the contract itself, or upon some collateral matter. In this case, therefore, even ¡fit was unnecessary to have set out the agreement between the parties, yet being set out, and not being impertinent, but connected with the cause, it ought to have been proved as stated, and not being so-proved, the plaintiffs were not entitled to recover on the first count in the declaration. We therefore dissent from the opinion of the court below on the fourth bill of exceptions.
The objection to the uncertainty of the award in that part in which the defendant is directed to give an endorser^ “as per agreement submitted to the arbitrators and acknowledged by the parties,” is well taken, and though in may be susceptible of being made certain and good by reference to the agreement to which it relates, yet there iff no sufficient averment in the declaration by which the defect is cured, and therefore both the declaration and the award are bad in that particular. The answer, that the defect is cured after verdict, does not remove the objection. The omission of an averment is soriieumes aided after verdict, on the ground that every thing may be presumed to have been proved which was necessary to sustain the action; and if it should be admitted that the want of an averment in this case would have been aided, after ver - dict, if the cause had been brought up by writ of error on the pleadings alone, yet the bills of exceptions taken at the, trial, which contain all the evidence offered to the jury, and upon which the court was required to direct then», that the plaintiffs were not entitled to recover, strips the verdict (if all its healing power, and presents the question vkully uninfluenced by it; for nothing can be presumed la *410Rive been proved which does hot appear iri the bills of exceptions; and' the plaintiffs, not being entitled to recover on the evidence so stated, the legal intendment fails by which alone a verdict can be called in aid of a title defectively set out.
Oilier points were started by counsel in argument which it has nSt been thought necessary to examine. The court is of opinion that the judgment of the Court below ought to be reversed.
JoíixsoN, J. dissented.-JUDGMENT REVERSED, AND PROCEDENDO AWARDED.