delivered the opinion of this Court.
The appellees sued the appellant in this case, on the 19th of April, 1864, for damages, for an alleged breach of a special verbal contract to sell and deliver, on the 18th of April, 1864, thirty-six head of cattle, at the price of $58 per head, amounting to $2,088, which the plaintiffs aver they tendered to the defendant, who refused to accept the same and to deliver the cattle as agreed.
The defendant (the appellant) pleaded four pleas : 1st. That he never promised as alleged. 2nd. That he never made such an agreement. 3rd. That there was no delivery or earnest, or part payment to bind the bargain or any note or memorandum in writing of the supposed contract. 4th. That the plaintiffs never made any legal tender, as the plaintiffs have alleged.
*459Issues being joined, at tbe trial the plaintiffs and defendant offered evidence and submitted to the Court several prayers, upon tbe rejection and granting of which, three exceptions were taken, two by tbe appellant and one by the appellees.
The appellant’s first exception is taken to the rejection, by the Court of a series of prayers numbered 2, 3, 4, 5,6, Y, 8, 3, 10, which announce propositions the reverse of those given by the Court, in their adoption of the appellees’ prayer, the granting of which constitutes the appellant’s second exception. In considering the one, we shall, there» fore, incidentally dispose of the other.
The substance of the appellant’s prayers is:
1st. That there is a material variance between the contract described in the appellees’ nar. and that proved.
2nd. That unless the jury shall find from the evidence, that the contract declared -on was made as alleged, the plaintiffs are not entitled to recover under the pleadings and evidence an the case.
3rd. There was no sufficient evidence of any earnest being given to hind the bargain.
4th. There was not sufficient evidence of a legal tender of the amount of the purchase money.
The necessity fo-r considering the exception taken on the part of the appellees, will depend upon the result of our inquiry into the foregoing propositions of the appellant. As to the first proposition, that there is a material variance between the contract declared on and the contract proved by the plaintiffs, all the witnesses who speak on the subject concur, that on the 16th of April, 1864, the plaintiffs and defendant agreed on $58 per head for thirty-five head of cattle, to be taken away on the 18th. The alternative, “or six cents per pound if not taken away until Friday,” is proved only by some of the plaintiffs’ witnesses. It is not necessary to sot out more of the alleged contract than pertains to tko *460obligation, tbe breach of which is complained of; if the alternative qualifies the obligation, then the whole should be set out according to its legal effect or tenor. 1 Chitty’s Pleading, 304, in marg., 11th Amer. Ed. The appellees suing in this instance for non-delivery on Monday, the 18th instant, the residue of the contract was irrelevant and not material to be described. But evidence of an agreement to sell thirty-five head of cattle at $58 per head, does not sustain the nar., either as to the number of cattle sold or the aggregate sum to be paid, all of which being alleged as descriptive of the contract, must be proved as laid. 2 Wms. Saunders, 291. 1 Chitty’s Pleading, 318.
The elementary rulés of evidence require the contract set out to be substantially proved. This is essential to the establishment of the identity of the claim. “It is the legal, and not the natural identity which is regarded, consisting of those particulars only which are essential to the action or to the justification, or have become so by being inseparably connected by the mode of statement with that which is essential,” &c. 1 Greenleaf’s Ev., 63.
The defendant is entitled to the benefit of this rule to protect himself by the verdict and judgment, if the same rights should come again in controversy. The rule does not generally apply to allegations of number, &o., except in those cases where they operate by way of limitation or description of other matters in themselves essential to the offence or claim. Ibid., sec. 63, and notes. 3 H. &J., 383. 6 H. & J., 38. Ibid., 81. 8 G. & J., 248.
The same precision of proof is required upon a plea or allegation of tender. Chitty on Contracts, 696, in marg., (9th American Edition.)
The plaintiffs having failed to prove the contract as set .out in the nar., which, it must be remembered, is a special contract for a specific number of cattle, át a specific price, could not insist upon their right to recover under the de* *461duration for the breach of another and different contract. Our system of pleading, though simplified, does not dispense with the essential rudiments of evidence. It does not permit plaintiffs to aver one thing and prove another. The prayers of the defendant, as far as they referred to the pleadings, were in the nature of demurrers to the evidence. The defendant’s second, third and fourth prayers, involving the principio that “allegata and probata” must correspond, ought therefore, in our opinion, to have been granted.
( Decided March 8th, 1867.)The plaintiffs’ prayer presented the converse of these propositions. Without analyzing it more particularly, it is sufficient to say, in this particular, in our opinion, it was erroneous and should not have been granted.
The questions arising on the other prayers of the appellant, referring to the sufficiency of the evidence to prove payment, or a tender of payment, or the giving of earnest to hind the bargain, are all subordinate to the main question, the proof of the contract, and the plaintiffs having failed in that, it is unnecessary to decide them.
As according to the principles advanced, the plaintiffs cannot recover in this action upon the pleadings and evidence, no procedendo will he ordered, and it is therefore unnecessary to express an opinion on the appellees’ exception.
Judgment reversed,