#### WOOD *v.*BATES.

Error — evidence for the jury' — variance—nonsuit—defendant supplying the deficiency of the plaintiff’s case — the condition of a contract is material.

On a declaration upon a contract by the defendant to call at the plaintiff’s coffeehouse the next day, and transfer stock, on teceiving the price agreed upon, proof that the defendant agreed to transfer the stock, is evidence (or the jury', and will not be ruled out after given. Quire, if in such a case a motion for a nonsuit would not have availed the defendant.

If the proof introduced, made out the deficiency of the plaintiff’s proof, ¡twill make his case good.

On a contract to transfer stock on the 21st May, 1831, and it apnears in the bill of exceptions there was proof of a contract to transfer on that day in 1833, the variance will be of no avail unless it show, that was all the evidence of the contract.

It is error for the court to charge the jury that the condition upon which a contract is to be performed, is immaterial.

Error. Bates declared in the common pleas against Wood, upon a special contract, dated 21st May, 1831, by which Wood agreed to sell him five shares of stock in the Commercial Bank of Cincinnati, at *$55*a share, to be paid for when transferred, and to call at his coffee house the next day, and transfer the stock according to the rules of the Bank. He averred his readiness to receive the stock and pay for it, but Wood did not come and transfer. Issue was joined on non assumjpsit. At the trial, it was proven for the plaintiff 4 that Wood, on the 20th May, 1831, agreed to sell the plaintiff five shares of stock, at the rate of *$5*a share, to be paid on the transfer — that the shares were $100 each, on which *$50*had been paid in, and that Wood agreed to transfer the stock at ten o’clock the next day, at which time stock sold at $12 a share, in *546advance on the sum paid in. On the second day after the bargain, Bates tendered Wood $225, and demanded the transfer.

The* defendant then moved the court to rule out the evidence as variant from the contract declared on, which the court refused.

The defendant then proved that it was a part of the agreement, that Bates was to call at the defendant’s auction store and go with him to transfer the stock and pay, but failed to call. • •

The court charged the jury, that the averment of the defendants agreement to call at plaintiff’s coffee house for the transfer was immaterial and need not be proven, and that the agreement by the plaintiff to call at the auction store of the defendant, was equally *immaterial.*

Yerdict and judgment for plaintiff, $56 and costs.

Exceptions were taken in behalf of Wood to the refusal of the court to rule out the evidence, and to the charge of the court; and for error in these particulars, it is now sought to reverse the judgment.

*Strait*and *Hawes*for the plaintiff in error.

*S.*Finley, contra.

Wright, J.

The plaintiff below counted upon a contract by the defendant, to call at his coffee house the next day, and transfer to him, five shares of the Commercial Bank stock, according to the rules of the Bank, on his receiving $55 a share. He proved a contract to transfer on the next day absolutely, and a tender and demand of the transfer the day after it was to have been made. The defendant moved to reject this evidence, after it was given, because it proved a contract variant from the one declared on, which was refused. We do not see the error in this refusal. The evidence, was applicable to the issue, and admissible even if objected to in time. If the bill of exceptions showed that this was *all the evidence*given, and the motion had been for a nonsuit, the question might have been different, but that was not- the case. The record shows no error in this refusal.

By adding the proof offered by the defendant, to that of the plaintiff, the contract shown, was for Wood to transfer on the 21st at the bank, if Bates called on him at his auction store for that purpose. The contract set out in the bill of exceptions as proven was made in 1833, twro years after the suit was brought. But passing that as a mere clerical error, the court, we think, erred in charging the jury that the condition upon which the contract was to be performed was immaterial, and for this error the judgment is reversed, and the cause remanded.