¶1We think there was evidence of fraud, offered by the plaintiff, sufficient to sustain an action on a proper declaration. The precise variance between the declaration and the proof, which led the learned judge to order a verdict for the defendants, does not appear by the report. But it does appear in terms, that he suggested to the plaintiff’s counsel that the variance might be obviated by an amendment. In the argument submitted by the defendants’ counsel, the only variance relied on, which an amendment could cure, was, that the declaration alleged a sale or purchase of Pratt’s interest in the business, while the evidence tended to show a lease and not a sale. The only question for decision therefore is, whether the paper put in evidence, purporting to be a lease should have been set forth in the declaration, and whether it is so far material that by omitting to do so, there is such a variance between the allegations and the proof that the defendants are entitled to a verdict. We do not think there is such a variance. The gist of the action is the fraud and deceit of the defendants, by means of false and fraudulent representations, and the consequent damage to the plaintiff, and not the particular form of the contract entered into by the parties. If by false and fraudulent representations upon which he relied, the plaintiff was persuaded to part with his money to obtain an interest in the pretended business, the precise manner in which the interest was to be secured to him is not so far material that it must be set forth in the declaration. Whether by bill of sale or by lease, it was in substance the purchase of an interest in the business, and if there was fraud there was no contract between the parties.
¶2The writing itself is certainly peculiar, and though in form a lease of a business for six months, it contains a provision, the substance of which is, that upon the payment of the stipulated rent Pratt’s interest in the business may pass absolutely to the lessee. In one aspect it is a lease, in another a bill of sale conditional upon the full payment of the sum agreed upon. Its precise legal character, it is not necessary to consider; it was competent, as part of the transaction alleged to be fraudulent, and does not furnish evidence of a transaction or bargain, so different from that alleged, as to constitute a fatal variance.
¶3The other questions argued do not fall within the ruling of the presiding judge and we have not considered them.
¶4New trial ordered.