Clark vs. Todd

Clark vs. Todd. A declaration in assumpsit on a special contract to deliver cloth to the plaintiff-, is not supported by evidence of a contract to deliver cloth at the defendant’s Factory, but the variance, between the declaration and the contract proved, is fatal. Rutland, February, 1814. THIS was an action of assuni~psit, on a special contract.~ The declaration set up a contract to deliver a certain quantity of cloth to the plaintiff, generally~ without mentioning any place of payment. On trial upon the general issue, the plaintiff produced a written contract, by which the defendant had, engaged to deliver to the plaintiff, the quantity of cloth stated in the declaration, at the defendants Factory in Poultney. [MAJORITY — By the Court.] By the Court. The plaintiff has declared on a contract, by which the defendant promised to deliver to the plaintiff a certain quantity of cloth, that is, according to the legal effect of the contract, to deliver the cloth to the plaintiff, at his, the plaintiff’s place of .abode, the contract proved is for the delivery of the cloth at the defendant’s Factory in Poultney, the variance is fatal. The plaintiff suffered a non suit.