Armstrong v. Baldwin

Treating the paper in the milk-book dated May 13, as containing the actual agreement between the defendant and the plaintiff’s assignor, we are unable to perceive any variance between it and the cause of action set forth in the first and second counts *445of the complaint. It was said upon the trial, and again repeated on this appeal, that there was such a variance. But none has ever been pointed out. The averments in the complaint may not embrace all the written stipulations. B.ut that makes no variance. It was enough to set forth the agreement according to its legal effect upon the rights of the parties. That we think was done. ¡Nor can it be deemed a contract between the defendant and the subscribers to it jointly. The nature of the transaction precludes such a construction.

Again, it is said that the paper does not import to be a contract on the defendant’s part. Technically speaking this is correct, although it is hardly consistent with the previous position assumed by the defendant. But the paper was competent and very pertinent evidence in connection with other testimony to show what the actual agreement was under which the milk was delivered by the assignor of the plaintiff, and received by the defendant. On proof of the allegations referred to, contained in the complaint respecting such agreement, and that the milk delivered to the defendant made the quantity of cheese stated, that the defendant sold it and received • the proceeds thereof, and that he has refused to pay over such proceeds, the plaintiffs .would be entitled to recover the amount thereof. It was error, therefore, to reject the evidence offered on this subject.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Judgment reversed, new trial granted.