In arguing.the motion for a non-suit, we were desired, by the counsel, to fix our attention upon the third count in the declaration, which, in substance, is that Hunt, the defendant, in consideration that Journey would buy of him eight thousand acres of land for £200, promised that the land should be good grass land, aud should bear grass equal, if not superior, ,to any land in the State of New Jersey. The breach assigned is, that it was not good grass land, and would not bear grass equal, if not superior, to any in New Jersey.

It has been contended that the proof was variant from the declaration. In the latter, the contract is said to have been made with Daniel, while the testimony shows that it was made with Daniel and Ralph Hunt; that the agreement is open and subsisting, and declared upon as such, for which reason the plaintiff is precluded from availing himself of the general count of indebitatus assumpsit. Halsted’s parol testimony ought not to weigh against the written testimony. Both undertook to procure the deed; the release of his claim upon the land afterwards tendered by Journey, was made to both; the note for the purchase money was made to both, and the plaintiff, having declared upon a contract with [240]] one, the error is fatal, and he cannot recover. 3 T. R. 64; Dougl. 23; 1 T. R. 133; 4 T. R. 314; Bull. N. P. 145, 168, 169, 186, are confirmatory of these general propositions.

There does not, however, appear sufficient ground to say that the declaration and the testimony, the probata and the allegata, are variant. Admitting that a contract subsisted *279with both the Hunts, or was originally made with them jointly, it appears, fully, that some difference existed respecting the completion of that contract, to end which, Daniel, the now defendant, did himself, in the absence of Ralph, under-, take and engage to procure Journey a deed, and that there should be no deception in the business. On the faith of this agreement, which is fully substantiated by the evidence, Journey gave a note for the payment of the residue of the consideration money. We cannot perceive the inconsistency contended for. There may have been, aud undoubtedly was, a contract with both, but it is evident that there was also a separate contract with Daniel, and this must have been the opinion of the jury. See Clark v. Holmes, 3 Johns. 148.

I also think Journey not debarred by his special count from recovering upon the general indehilalus assumpsit. It appears that he made a tender of a release; this, if there was any fraud in the original contract, amounted to an annulling of it, and, after a verdict, we are to presume such was the opinion of the jury. The cases, therefore, from Douglass aud Term Reports, as to the incapacity of pursuing this remedy while there is an open and subsisting contract, are inapplicable.

On the application for a new trial, it is said the verdict was against the weight of evidence; the written testimony should have outweighed that of Halsted; that the jury misconceived the case in believing that, by their verdict, Journey would have the money aud Hunt the land, whereas the plaintiff has both.

As to the first part of this objection, the remarks which have just been made are applicable to it. The observations re-[241]-lative to the mistake of the jury, are without any weight. Tne defendant refuses the release, and then complains that he has .not the land. With regard to the weight of evidence, the justices who tried the cause do not declare themselves dissatisfied with the verdict, and upon the principle of Ashley v. Ashley, 2 Str. 1142, a new trial ought not to be granted.

It has been objected the declaration is bad, because an un*280dertaking that the land should bear as good or bettev grass than any land in New Jersey, is too vague and indefinite to support an action. A parol promise that such seed will grow on laud, does not bind. 1 Com. Dig. 239. It haG also been contended as at least doubtful whether any representation relative to real property, will sustain an action. Harvey v. Young, Yelv. 20; Lev. 102; Cro. Jac. 4; and that a warranty should be made at the time of sale. 1 Com. Dig. 238. The cases in Godb. 216; 1 Roll. 20; T. Ray. 400, impugn this idea.

We should regret very much to be obliged to say that no representation relating to real estate, however false and fraudulent, will support an action. The contrary has been held in Pennsylvania, (a) I think that for fraud, in the sale of either real or personal estate, an action lies.

On the whole, we see nothing on which we can grant either of these motions.

Motions denied.

Note. — Williamson had objected to the statement of the case, and wished it amended by the introduction of a circumstance which was not contained in the notes of the justices at Nisi Prius, but which Smith, J., recollected. It was done accordingly on the authority of 1 Salk. 47; 1 Sir. 513 ; Cro. Car. 338.