Trask v. Duval

The promise stated in the declaration is absolute, to pay when the goods should be delivered, and the amount of freight ascertained. The promise proved is conditional, to pay the freight, if Coucier, the owner of the goods, did not. In the one case, there was no necessity to demand payment of Coucier before the defendant’s liability would arise; in the other, such demand was essential. The variance therefore is substantial, and the plaintiffs ought to be called. Nonsuit.

On motion the nonsuit was set aside, and leave given to amend, on paying costs.