#### Colman *v.*Price.

Indebitatus assumpsit for goods sold and delivered. Proof, that the plaintiff had consigned goods to the defendant for sale, and that some of them had been sold by the.defendant. *Held,*that the action was not supported; the contract declared oñ being essentially different from that which was proved.

ERROR to the *Knox*Circuit Court. — Assumpsit by *R. Price*against *S. Colman,*The declaration contained but one count, and that was in indebitatus assumpsit for 102 dollars for 13 hats sold and delivered. Plea, non-assumpsit. The plaintiff below proved, that he had sent a number of hats to the defendant, a merchant at *Terre-Haute,*to be sold for the plaintiff; that they had been received, and some of them sold, by the defendant; and that the defendant had said, since the commencement of *304the suit, that if the plaintiff had not brought suit, the matter might have been settled. The defendant proved, that he was a clerk in the store of *A. Maride*and *J. M. Colman,*at *Terre-Haute,*when the hats were received; that soon after their receipt he quitted the employment; and that long afterwards, some of the hats were taken back by the plaintiff, as unsold, from the person who had succeeded *A. Maride*and *J. M. Colman*in the store. This was all the evidence. The jury gave a verdict in favour of the plaintiff below for 64 dollars; a motion by the,defendant fora new trial was overruled; and judgment was rendered on the verdict.

*Judah,*for the plaintiff.

*Tabbs,*for the defendant.

Scott, J.

The plaintiff below declared in a general count in assumpsit for hats sold and delivered. The evidence adduced proved a special bailment to the defendant as an agent.

The contract proved is essentially different from that which is set out in the declaration; the judgment must be reversed (1).

*Per Curiam.*

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.

(1)

 Where goods are consigned lo a factor for sale on commission, a contract is presumed that he will account for such as are sold, pay over the proceeds, and re-deliver those remaining unsold, on demand. The declaration against him avers a demand of an account; and, to support the action, the demand must be proved or presumed. *Topham v. Braddick,*1 Taunt. 571.

The following is a form of the declaration, in such a case, in special assump*sit:*— Knox county, to wit. *A. B.*complains of *C. D.*in custody, &c. of a plea of trespass on the case, on promises, &c. For that whereas on, &c. at, &c. in, &c. in consideration that the said *A. B.*at the special instance and request of the said *C. D.*had delivered and caused to be delivered to the said *C. D.*divers large quantities of timber, to wit, five hundred cart-loads of timber of and belonging to the said *A. B.,*of a large value, to wit, of the value of two hundred dollars of lawful money of the *United*Stales, to be sold and disposed of by the said *C. D.*for the said *A, B.,*for a certain reasonable reward or commission to be therefore paid by the said *A. B.*to the said *C. D.,*he the said *C. D.*undertook, and then and there faithfully promised the said *A. B. to*sell and dispose of the said timber for the said *A.*B., and to render a reasonable account thereof to the said *A.*B., whenever he the said *C. D.*should be thereunto afterwards requested: And the said *A. B.*avers, that the said *C. D.*afterwards, to wit, on, &c. at, &c. did dispose of and sell the said timber for a large sum of money, to wit, the sum of two hundred dollars of like lawful money, and then and there received the said money for the same: Yet the said *G. D.,*not regarding, &c. but contriving, &c. hath not yet rendered the said *A. B.*any reasonable account of the said timber, or any part thereof, although so tp do he the said C. *D.*by the said *A. B.*afterwards, to wit* *305on, &c. and often since, at, &c. was requested; but he so to do hath hitherto wholly refused, and still doth refuse, contrary to the form and effect of the said promise and undertaking so made by the said C. *D.*as aforesaid. To the damage of the said *A. B.*of three hundred dollars, and therefore he brings his suit, &c. 2 Went. 486. Vide forms, also, in 2 Chitt. Pl. 161,162; 3 ib. 201.