The first exception relates to the ruling of the judge on the question of variance. The declaration sets forth a sale of a pianoforte with a warranty, and alleges that it was paid for in cash. The pianoforte was returned by the vendee, and the action is brought to recover back the consideration paid. The defendant, having offered evidence tending to show that the payment was not in cash, but by an order payable in lumber, requested the court to rule, in substance, that if payment was thus to be made, there was a variance between the declaration and the proof. But the court ruled otherwise. This ruling was erroneous. The allegation of a consideration in money would not be sustained by proof of a consideration in specific articles, in an action to recover back the consideration. The practice act does not change the rule that has always existed on this subject. Stone v. White, 8 Gray, 594. The plaintiff must set forth with accuracy the substantive facts of his case.

*416There is some reason to believe that the defendant suffered no practical injury by this ruling, and that the objection is merely technical; for the jury were instructed that, “ notwithstanding the price paid consisted of an order by the buyer on a third party, accepted by such third party, as payment by the seller, and payable in merchandise to the seller at the lowest cash market price, if this order was treated as cash by the parties at the time of sale,” the plaintiff might recover the price paid in money. The qualification as to. the merchandise being treated as cash by the parties makes the ruling substantially correct on the question of damages. But the court cannot be sufficiently certain that the defendant suffered no detriment by the ruling as to the variance to permit the verdict to stand, and allow an amendment of .the declaration for the sake of sustaining it. A new trial must be had; and the plaintiff may renew his motion for leave to amend in the court below, in order to enable him to meet this aspect of his case, if he thinks the evidence will require it. That court can fix the terms of the amendment.

The second exception relates to the ruling of the judge, that “ a representation that a pianoforte is well made and will stand up to concert pitch is a representation of fact, which, if proved to be false, as' between a seller making the representation and a buyer relying upon it, would authorize the buyer to recover,” &c. The word “ representation ” was undoubtedly used here as synonymous with affirmation ; and there can be no doubt that such an affirmation is a warranty. It relates to the quality of the article, and is like an affirmation that a horse is sound and will work well in a harness. The defendant contends that it should have been left to the jury to find whether this language was used with the intention of affirming the fact, or of expressing an opinion. But the intent of the party is immaterial. The legal proposition stated by the judge was correct.

Exceptions sustained.