Walsh v. Gilmor

refused to give the direction prayed for. The defendant excepted,

S’, The third hill of exceptions. The defendant then prayed the court to dire'et the jury, that the paper dated the Í9lh of August 1795, and admitted to be written and signed by the defendant, and by him sent to the plaintiffs, and produced and read by the plaintiffs to the jury, was not admissible evidence, and ought not to be' regarded by them, unless the plaintiffs also produced and read to the jury the letters of the defendant to the plaintiffs upon the subject of the reference, dated the 1 fifth and Í 9th of August l795.

refused to give the direction. The defendant excepted.

4. The defendant’s counsel having sworft John Purviancc, Esquire, one of the plaintiffs’ counsel, offered to put to him the following question': “Have you in your possession the letters mentioned to have been written by the defendant to the plaintiffs of the 18th and 19th of August 1795?” To this qestion being put to the witness, the counsel for the plaintiffs objected.

It is not proper for the counsel to answer the question, unless he is willing to answer it.

I think the' question ought to be answered.

5. The fourth hill of exceptions. The plaintiffs- having given In evidence the contract before mentioned* then gave in evidence the following letter from the defendant to- the • plaintiffs dated the 17th of August 179oi “When I agreed to purchase the Brandy which you should receive by the ship Arm, at the rate Of one dollar and fifty cents p. gallon, it was intended by Mr. Gilmor and myself that it should be of the quality generally received from Bourdcaux, and called Bourdeaux Brandy, that the quantity was about 9(5 pipes; and under an assurance from Mr. Gilmor. that no more Brandy' would arrive in the ship, but that which Was consigned to your house, to wit, the ninety pipes, and a email quantity of oldCogniac, *393which Mr. Gihnor had ordered for his own use, and the use of two other friends — J therefore Calculated that the amount in money of the purchase would be from 14 to 15,000 dollars, counting the guage of the Bourdeaux pipes,, as usual, not more than 100 to 110 gallons, and had prepared an endorser for my notes accordingly. Being in Phi* laddphia when the Ann arrived, and the Brandy landed, it was received in my warehouse — On my return home, two or three days after it was landed, and on examining it, I found the quality not Bourdeaux Brandy; the quantity about one half more than was expected, and about 50 pipe» of Brandy offered for sale in the town, in other handst which were imported in the Jinn. I therefore inform you, that I do not hold myself bound to the purchase, because the quality is not Bourdeaux Brandy; the quantity is much more than 1 counted upon, or had a right to count upon, and because a considerable quantity has been imported in the ship, and put into the market, more than that received by your house.” The plaintiffs also gave in evidence the letter from them to the defendant, dated the 17th of August 1795, as herein before stated, and also the following letter from the defendant to the plaintiffs, dated the 1 Stfe, of August 1795: “In your note of yesterday you say 1 have taken a new ground as a reason for my not complying with my contract, and that as a man of honour and a merchant, I am bound to abide by my contract, unless I can show such reasons as will justify anoncorapliance,and that, to you, those adduced appear totally inadequate to the purpose — and you observe, that there is but one way left, which is, to lay our several pretensions before indifferent men, and to abide by their determination, and if I agree, to let you know, that two men may be named, and let us enter into bonds for abiding by their award. In answer, I observe, that I have taken no new ground; that my objections are true, two of them you will not, I believe, deny — those are, that the quantity is more than about ninety pipes, and that you assured me no other Brandy would be imported in the ship. I am not afraid to meet the decision of indifferent judges; they may be named when you please; and as to our entering into bonds, I feel myself at a loss t<¡> know what I should bind you to. If my objections are considered as suilicient to clear me from being bound to the purchase, I have then no other claim olí you, but to pay *394for tíié-pórterage of the Brandy to my warehouse, ántl fmf your doing So; I desire no bond. If the gentlemen who ínay be chosen would say that my objections are not well founded* and that, therefore, I must be bound to the purchase of the Brandy, I shall agree,- so far as relates to any act within my own power; but I must observe, it may not be in my power to' obtain the endorser you called for.” The, plaintiffs also .gave in evidence the'letter from them to the defendant, dated the'18th of August 1795, herein before stated; arid also the following letter from the defendant t© the plaintiffs, dated the 19th of August 1795: “I repeat* that if it is judged that I shall be obliged to keep the Brandy, or,any part of it, which Í think scarcely possible,! will offer you no endorser. I da believe¡jhat neither Gen. Sinith or Mr. Patterson would act on this occasion, as I’suppose they would consider themselves not conversant enough with Brandies to determine whether this in question is Bourdeaux or Straights Brandy; either of these gentlemen could very readily discover that this Brandy is not as good as they are accustomed to use, but not being in habits, perhaps, of oh-* serving nicely the different qualities, would be at a loss to give your’s a name. I therefore object to either of these gentlemen; and propose for your choice of ofie, three gentlemen, dealers in the article — they are Mr. John Holmes, Col. Strieker, and Mr. Engélhard Yeise'rThe plaintiffs also offered in evidence the letter from them to the defendant, dated the 19th of August 1795, herein before stated; also the submission entered into after the letters, dated the 19th of August 1795, and herein before stated; and also tljé award made in pursuance thereof. The plaintiffs then prayed tbedirection of the court to the jury, that the award was authorised by the submission, and within the terms of it.

cited Green vs. Warren, 1 Blk. Rep. 475.

The court are of Opinion, that the terms and Stipulations between the parties, on which their matters in dispute were to be submitted to reference, are matters of fact to be determined by the jury, on evidence adduced to them. The court, therefore, cannot give the direction prayed for by the counsel of the plaintiffs. The plaintiffs excepted.

*3956, The fifth bill of exceptions. The plaintiffs further proved, that on the 12th of October 1795, they drew the fallowing written order on the defendant, to deliver the Brandy to Yates and Campbell: “You will deliver Messrs. Yates and Campbell the 10,1 pieces ofRrandy, and you will account with me for the piece that was staved. My son Robert will calluponyou to-day or to-morrow for that purpose.” That in pursuance of that order, the Brandy was delivered, on the 13th of October 1795, to Yates and Campbell, and by them sold at public auction, by order of the plaintiffs, on the 16th of October 1795. The plaintiffs then produced, and offered to read to the jury, a paper purporting to be the original list or memorandum, upon which was entered the different casks containing the Brandy, and upon which the entries were afterwards made that v/ere transferred to the books of Yates and CampJiflL the persons to whom the same were sold by Yales and Campbell, and the prices at which the same were sold; and proved that the same waft made out in the handwriting of one-^ ]^atrick,x who at that time acted as clerk of Yates and Campbell, and hq being present qt the sale, made out the same by thek order; and that Patrick was now dead. To the reading, of this paper to the jury, the defendant objected, on the ground qf its being inadmissible evidence.

The court are of opinion, that the objection is not a good one, and they permitted the paper to be read to the jury. The defendant excepted,

7. The plaintiffs then prayed the opinion of. the court,, and their direction to the jury, that if the jury should believe that no part of the contract was submitted to the arbitrators, except whether the defendant should take any, and what quantity of the Brandy, that then the award made cannot operate to, change, alter qr annul, the contract, either as to the price to, be paid,, the time when the payments were to be made, or the manner in which the payments were, to be secured, those parts, of the contract not being submitted to the arbitrators,.

The court are, of opinion, that the award does not destroy or annul the original contract between th.e parties, further than the award pursues, and conforma-; Pi? to the tenp of the rejerepge.

*396The court are also of opinion, that the plaintiffs camigt on the first count in their declaration recover damages, except for a noncompliance with the award, so far as the same is conformable to the submission.

8. The sixth bill of exceptions. The plaintiffs offered in evidence, that the defendant, on the 27th of July 1795, entered into a contract with the plaintiffs, by the two following letters: [The first being a letter from the plaintiffs to the defendant, and the other from the' defendant to the plaintiffs.] “Agreeable to our promise, we now conclude on selling you whatever Brandy we may have on board the Jinn from Bourdeaux, upon the terms you proposed; that is, you are to pay us at the rate of one dollar anti fifty cents per gallon for the whole, which we estimate at about 90 pipes, (exclusive of some old cogniac we have on board which is not meant to be sold,) whatever the proof may be, ■ provided the ship arrives in six weeks from this timéi Ón, the delivery of the Brandy you are to' give us your and Mr. J. Carre.rc's notes for'the whole, at S and 4 months from the’ commencement of the delivery — Your agreéing to the preceding terms wilt be binding on,” &c.'" Then the ' other letter from the ' defendant to the plaintiffs was dated the 27th of July 1795, and is before stated in the first bill of exceptions. ’ The plaintiffs also offered in evidence, that the said vessel did arrive within six weeks, having on board 18,025 gallons,' equal to 124 pipes of Brandy, which in the absence of the defendant was received at his warehouse according to the defendant’s directions. They also offered'the' Several letters which 'passed between the plaintiffs and' defendant, herein before set' forth, dated the 17th,’ 18th/and 19th of August 1795; also the submission to the ¿rbitrators and theirawardi’and gave iñ evidencé that a copy of the ¿ward was delivered to the parties, ’’ The plaintiffs' then prayed the opinion of the court, 'and their direction to the jury, that supposing no part of the contract was submitted to' the’ arbitrators, except whether the defendant should take any and What quantity'of the Brandy, in that case the 'defendant by' the ¿ward was bound to take 90 pipes, or 10,000 gallons, of the Brandy, but at the same time was not by the 'award entitled to take the same without complying with/the terms el. *397the contract as to the price, the times of payment, and the manner in which the payment was to be secured.

refused to give the direction prayed for. The plaintiffs excepted.

9. The seventh hill of exceptions. The plaintiffs having offered in evidence, that on the 10th of October 1795, being Saturday, the plaintiffs called upon the defendant, and demanded of him whether he would retain the! Brandy, so delivered into his warehouse, on the terms of the contract, and the award, to which the defendant replied that he would not, that’he had never-considered the Brandy as his, and that the plaintiffs might take it away whenever they pleased. That the plaintiffs then told the defendant, that they would take away the Brandy the next Monday, and if on a resale any loss should arise they, the plaintiffs, should consider the defendant responsible, and act accordingly. To which the defendant made no reply. The plaintiffs then proved, that on Monday the Í2th of October 1795, they drew an order in writing for the Brandy, on the defendant. That in consequence of that order the Brandy was delivered by the defendant to Messrs Fates and Campbell, the persons in the order named. The defendant having offered to subjoin the above statement of the evidence, admitted to have been given, to the statement of facts made by the plaintiffs, as the foundation of their prayer for the opinion of the court given on the preceding bill of exceptions,

refused to have the same added, on this ground, that the same had no relation to the subject matter by the prayer submitted for the consideration of the court. The defendant excepted.

10. The eighth hill of exceptions. Upon the. statement in the sixth tall of exceptions, and the court having previously directed the jury, that by the award the defendant was bound to take 90 pipes, or 10,000 gallons, of the Brandy, the plaintiffs then prayed the opinion of the court, and their direction to the juryj whether, supposing no part of the contract "way submitted to arbitrators, except whether the defendant should take, any and what quantity of the Brandy, the defendant way in consequence cf the av/ard. *398entitled to take the same, without complying with the terms of the contract,

The Court are of opinion, that under the award the defendant was at liberty to keep the Brandy without complying with all the terms of the original agreement herein recited- The plaintiffs excepted.

11. The ninth hill of exceptions. The defendant, by hi* counsel, proposed to add the statement in the seventh hill, of exceptions, to the last above statement; but the court refused to permit it to be added, upon the same ground it was refused to the statement in the sixth bill of exceptions, The defendant excepted.

12. The tenth hill of exceptions. The plaintiffs then gave in evidence, by Colonel John Strieker, one of the arbitrators, that previous to the award they the arbitrators never received.any papers relative to the matter in dispute, from either of the parties, but in the presence of the opposite party; that the arbitrators, previous to the giving the award, had but one interview with the parties, when each made a verbal statement of their case, and the plaintiffs left with the arbitrators the letter from the defendant to them, dated the 2,7th July 1795, herein before stated. That he the witness, did not know whether the defendant saw that paper when it was delivered to the arbitrators by the,plaintiffs, or not, and that he does not recollect whether the defendant did or did not agree to submit to the arbitrators whether he the defendant should give to, the plaintiffs, an endorser for the price of the Brandy, in case he should be. adjudged by the arbitrators to take the same, or any part M.flmretjf. That the letter from the defendant to, the.plaintfbpve stated, on the 27th July 1795, was the. paperupftrf/which the arbitrators acted'; and that having- deterpjtjn^ljbat the defendant should keep 90 pipes, or 1,0,000. gallons,*of the Brandy, th.e arbitrators determined that he ..¿ought to give an endorser, it being so provided by the contract,. . The plaintiffs then prayed the opinion of the court : 'to.the’jury, that if they believed such evidence, that then such evidence is sufficient, in point of law, to. support the first count in the plaintiff*’ declaration,

The couYt having already determined, “that the terms and stipulation* t¡**399tween the parties, on which their matters in dispute wet© to be submitted to reference, .a»!»matters of fact to be determined by the jury,” and the validity of the award thus depending on the opinion of the jury, they cannot give the direction as prayed. The plaintiffs excepted.

stated, that the question to be argued on the fifth bill of exceptions, was, Whether the memorandum or original list of the sales of the Brandy ought not to have been admitted in evidence? They contended that it ought not, as it did not fall within the exception to the genera! rule'of law, that the best evidence, of which the nature of the case was susceptible, must be given. That Yates or Campbell, both of •were alive, ought to have been produced to prove They cited Peake's Evid. 10. Price vs. The Earl of Torrington, 1 Salk. 285. Bull. N. P. 282, 283. Cooper vs. Marsden, 1 Esp. Rep. 1. Warren vs. Greenville, 1 Stra. 1129. Smartle vs. Williams, 1 Salk. 245 & 280. Williams vs. The East India Company, 3 East, 192; and Davis vs. Batty, 1 Harr. & Johns. 264.

cited Digby vs. Stedman, 1 Esp. Rep. 829. Pitman vs *400Maddox, 2 Salk. 690. 1 Lofft's Gilb. ch. 1, p. 5; and Biggs vs. Lawrence, 3 T. R. 454.

*39913. The eleventh bill of exceptions. The defendant then prayed the opinion of the court to the jury, that the award produced and given in evidence to them is not admissible evidence to them upon the second count in the plaintiffs? declaration; and that upon that count it ought to be disregarded by them.

The court are of opinion, that the award, ef‘

ther separate from or connected with the original contract in this case, is not legal or competent evidence to be admitted in support of the second count in the plaintiffs’ declaration. The plaintiff’s excepted; and the verdict and judgment being for the plaintiffs, the defendant appealed to this court. 1 he cause was argued on the fifth bill of exceptions, at December term 1806, before Chase, €h. X. and Buchanan, and Gantt, J. by PP¡ Dorsey and Harper, for the Appellant; and S'. Chase, jr. for the Appellees, and was reargued at December term 1807, before Chase, Ch. X» and Txlgiiman, Buchanan, Nichouson, and Gantt, J.

dissented from the opinion given by the, General Court in the fifth bill of exceptions; and as no objections were urged against the opinions given in the other bills of exceptions, taken by the defendant in that court, they concurred therein.

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.

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.

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.

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.

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.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.