*William M. Brooks ads. James M. Lowrie.
The whole consideration of a contract must be set forth in the declaration, and if any part of an entire consideration, or of a consideration consisting of several things he omitted, it is a variance on which the plaintiff must fail,
This was an action of assumpsit, on a written contract, by which the defendant undertook to carry a certain quantity of coffee to the State of Kentucky ; in consideration of which the plaintiff agreed to give him “ one half of the net proceeds on the coffee, and the load bade," which, it was agreed, should be cotton bagging. The declaration stated the consideration to be, “ one moiety of the clear profits on the sale of the said coffee," omitting the latter part of the consideration, “ the profits on the load bade.”
When the plaintiff had closed his testimony, the defendant’s counsel moved the Oourt for a nonsuit, on the ground that the contract x>roduced and proved did not correspond with that set out in the declaration.
The cause was tried at Sumter, before Mr. Justice Nott, who overruled the motion.
The defendant then went into his evidence, and the plaintiff recovered a verdict.
A motion was now made in the Constitutional Oourt for a nonsuit, on the ground above stated.
The opinion of the Oourt was delivered by
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Silliman, for the motion. Levy, contra.
Nott, J.
When the motion for a nonsuit was made on the circuit, the specific variance, which is now relied on between the.contract and declaration, was not pointed out by the counsel, nor observed by the Court; and I was surprised, when the case came into this Court, to find that the whole consideration had not been set out in the declaration. For nothing is more clear than, that the whole of the consideration of a contract must be stated, and if any part of an entire consideration, or of a consideration, consisting of several things, be omitted, the *plaintiff will fail on the ground of variance. 1 Chitty on Pleadings, 295. If a part of the consideration be frivolous, it may be omitted without prejudice; but the part omitted in this case formed an important feature in the case.
The Court is not disposed however to grant a nonsuit; but the defendant may have a new trial, and the plaintiff may amend his declaration, upon payment of costs.
Colcock, Cheyes, Gantt and Johnson, JJ., concurred.