The phrases "would draw their said lumber to said mill to be sawed," and "would run or draw their lumber aforesaid into the pond of said mill to be sawed," in the declaration, are equivalent to "would deliver their lumber at said mill to be sawed," and there is no material variance. The delivery of the lumber to be sawed, and the promise to pay the agreed price for sawing by the plaintiffs, constituted the consideration for the defendants' promise to saw the lumber. Whether the logs were already in the pond at the mill, or on the lot where they were cut, was immaterial. The distance the plaintiffs had to draw their logs to deliver them to the defendants for sawing, or whether they had to draw them at all, was neither matter of description nor any part of the substance of the contract. The plaintiffs were not bound to support their declaration literally, but substantially. 1 Ch. Pl. 316. When there is no direct contradiction between the allegations and the evidence, it is in general sufficient that they agree in substance. 1 Ch. Pl. 299. A variance is immaterial which does not change the nature of the contract. Ferguson v. Harwood, 7 Cranch 409; Badger v. Burleigh,13 N.H. 507, 512.
Judgment on the verdict.
FOSTER, J., did not sit.