¶1The opinion of the court was delivered by
¶2The only question in this case, is a question of variance; and we think there must be a new trial.
¶3The declaration, as a consideration for the promise, states an indebtedness from the defendant to the plaintiff in about forty-three dollars and fifty cents, and an agreement that he would acquit the defendant therefrom. The proof is an indebtedness from defendant to one Subbell Lathrop, in a note, for fifteen thousand heart shingles, payable to Lathrop, in one year from date, of which note the plaintiff was the holder, the note bearing date in November, 1842.
¶4The note not being negotiable, the legal indebtedness was to Lathrop, and the plaintiff had only an equitable claim against the defendant; and the promise in the declaration, on the part of the defendant, was to give the plaintiff his promissory note for about twenty-four dollars, and a certain rifle gun, valued at ten dollars, which had belonged to Artemas War’d, Jr. The note which the defendant was to give the plaintiff, as appears by the evidence, wastobe for twenty-four dollars, payable in three thousand feet of floor plank, and to be given within a week or ten days. The legal intendment from the declaration is, that the note was to be given, upon the plaintiff’s discharging his debt, and that it was to be a cash note for about twenty-four dollars. It requires no argument to show that a note payable in lumber, is not the same thing as if payable in cash.
¶5The judgment of the County Court is reversed, and the case remanded.