at the ensuing Jlugusl term in Oxford, delivered the opinion of the Court, as follows.
The writ, on examination, is found to contain only one count ; viz. assumpsit for ten barrels of pork sold and delivered by the plaintiffs to the defendant. But the facts reported do not shew any thing like a sale and delivery ; nor were they intended for this purpose, but to charge the defendant as bailiff or factor. The want of a proper count for this charge was not noticed at the trial, either by the Judge who tried the cause, or by the counsel for the defendant, and a verdict has been returned for the plaintiffs. We do not feel disposed to question the correctness of the opinion of the Judge so far as he meant it should extend; but he instructed the jury that if they were satisfied on certain points, relating to the defendant’s proceedings as factor, then the plaintiffs might well sustain their action for the fair value of the pork. And the question now is, whether the evidence supports the verdict, so that we can render judgment on it; or whether we must set the verdict aside, that the plaintiffs may amend their declaration and conform it to the proof in the case. It is said that the merits are found to be with the plaintiffs ; and that therefore we ought not to disturb the verdict on a formal objection ; and some cases have been cited in support of this principle. Thus in Jones v. Fales 4 Mass. 245, Parsons C. J. says, “ I am strongly inclined to “the opinion that objections to the evidence, as not comporting “ with the declaration, ought not generally tobe admitted, unless “ the objections were made at the trial, and the point reserved.” The rest of the Court are silent on this point. At most it is the expression of an inclination of his mind only.
The Court proceeded on other grounds; and the verdict was in fact set aside. The case of Bridge v. Austin 4 Mass. 115, very nearly resembles this. Parsons C. J. in giving the opinion “ of the Court says “ we are satisfied that the construction of it,” *182(the memorandum declared on) “ is agreeable to the direction <c of the Judge, and that the verdict cannot be set aside for his ic misdirection supposed by the defendant. But upon looking “ into the declaration, it clearly appears that the written memo- “ randum was not legal evidence to prove the plaintiff’s count; cc and as a judgment in this action would not be a bar to another 11 action on the contract stated in the memorandum, the verdict c£ must be set aside and a new trial granted; when the plaintiff, if u he should think proper, may move to amend on terms. In the case mentioned at the bar, but not reported, the Court proceeded on a similar principle, where a similar difficulty occurred on the part of the plaintiff. This case is alluded to in Farmington Academy v. Allen 14 Mass. 172. In Booden v. Ellis 4 Mass. 115, the question was not upon any disagreement between the declaration and proof; but whether trover would not lie as well as assumpsit. The case seems to have received but little consideration; and the language is so general, that, if adopted as it stands, it would go far to abolish all the distinctions as to the different classes and forms of action. In Coffin v. Storer 5 Mass. 252, there was an agreement inserted in the case at the suggestion of Parsons C. J. waiving objection to the form of action, if the plaintiff should be considered entitled to recover in any form. I was of counsel in the cause and know the fact. ■ Besides, the frequent insertion of similar agreements in statements of facts, seems to be founded upon its necessity ; and shows the general understanding as to the legal principle.
It may be further observed that it is, to say the least, doubtful whether a judgment rendered on the verdict in this case would be a bar to another action founded on the defendant’s liability as the baliff or factor of the plaintiffs. The exceptions filed, constitute no part of the record; and in Jones v. Fales the Court say, “ the “ defendant cannot aver any thing contrary to the record to which “ he is a party;” and by the record, in the case before us, the defendant is charged as a purchaser of the pork, and the jury, by finding a verdict for the plaintiffs, have found that the same was actually sold and delivered to him. The difficulties in which the action is placed, were produced by the plaintiffs themselves or their counsel; and they have, therefore no reason to complain. *183Their declaration should have been adapted to the facts of their case. We have also examined the other cases cited by the plaintiffs’ counsel ; but they are not cases of variance between the declaration and the proof, and therefore are not similar to the case before us.
On the whole, we think the verdict must be set aside and a new trial granted. The plaintiffs may then move for leave to amend, if they should think proper; and the Court will grant leave on such terms as might then be deemed just and reasonable.
Verdict set aside.