delivered the opinion of the court.

The action is for the recovery of damages for a false warranty in the sale of a negro woman. On the trial an objection was made to the introduction of the bill of sale because of a variance from the contract of sale described in the declaration. The declaration is, that Tutt, for the sum of 860 dollars, sold to the wife of the defendant in error, a negro woman named Amy, which he falsely and fraudulently warranted to be sound. The bill of sale showed a sale and warranty of two negroes, Amy and Burrell, for the sum of 850 dollars, and the question is, whether it was such-a variance as should have excluded it from the jury?

The form of the action will not change the nature of the proof. This action was held by this court on a former occasion to be case, and the law is, that where an action of tort is founded on a contract, a variance from the contract alleged, will be as fatal as in an action on the contract itself, for the tort founded on the contract cannot be the same unless the contract be the same. 3 Starkie on Ev. 1547; 2 Saund. on Plead, and Ev. 913. The action was on the contract or bill of sale, for a breach of the warranty. It was the warranty which created the liability, and for the breach of which the action was brought. The rule of law, therefore, is applicable, and the court erred in permitting the bill of sale to be read as evidence in support of the allegation in the declaration.

A witness was called to prove the price of the unsound negro, *226as fixed by the parties at the time of sale, and this was objected to also on the ground that the contract was entire, and being in writing must explain itself. We have not been furnished with authority in support of this position, and we do not think it well taken. The evidence was not offered to vary the contract but merely to show the value of the unsound negro. It was competent for the plaintiff below to do so, to show the criterion of damages, and the value fixed by the parties was the fairest estimation that' could be had.

Judgment reversed, cause remanded, and venire de novo awarded and leave to amend.