Opinion of the court. the making and delivery of the bond are laid under a videlicet. The issue was joined on the rejoinder of the defendant to this replication. The rejoinder was: "That at the time of the execution" of the bond "Beers was not postmaster in the manner and for the term of office set forth in the replication, but was postmaster by Presidential appointment." The execution of the bond included its signing, sealing, and delivery. The making of the bond would seem to be the writing of it. This rejoinder, then, tendered the substantial issue in the case, and upon that the parties went to trial. The former decision of this court covers the merits of the case now. Mr. Justice MILLER delivered the opinion of the court. It was decided, when this case was in this court before, that the bond, which is the foundation of the suit, was obligatory from the time of its acceptance by the PostmasterGeneral, and not from its date; and also that the term of office of Beers commenced, under his appointment, by and with the advice and consent of the Senate, on the day of that acceptance. The case having been remitted to the Circuit Court for a new trial, that court directed a verdict for the defendant, on the ground that there was a variance between the bond offered in evidence and the one set out in the pleadings. The variance is supposed to have reference to the time the bond took effect. It is claimed that the bond is described as being dated and taking effect on the 1st day of July, 1850, whereas the evidence showed, that while it bore that date on its face, it was not approved by the Postmaster-General until the fifteenth day of that month, and, therefore, under the decision in 19th Howard, did not become the bond of defendant until the last-mentioned date. * Burrill's Law Dictionary, tit. "Execution." Opinion of the court. Upon an examination of the declaration, it will be seen that the plaintiff declares on the bond, according to its legal effect, namely, that on July 1st, 1850, the defendant, by his certain writing obligatory, acknowledged himself indebted to the plaintiff in the sum of $20,000. This manner of declaring gives no date to the bond, and merely gives the time when defendant became bound by it to the plaintiff. The rule that allegations of time, quantity, value, &c., need not be proved with precision, but that a very large departure from the time, quantity, &c., alleged, is allowable, is so well understood, and is so much a matter of every-day practice, that no citation of authority to sustain it is necessary. An indictment charging a prisoner with murder on the first day of July would be sustained by proving a murder committed on the fifteenth of that month. How much more reasonable that a contract alleged to have been made on the first, may be supported by evidence of the same contract made on the fifteenth of the month? But it is also a rule of evidence that when words used in a declaration are descriptive of the instrument declared on, it must, when offered in evidence, conform strictly to that description; and we concede that if it is alleged as part of the description of such an instrument that it bears such a date, or is dated of such a day, that no instrument will be admissible which does not bear that date. It is said by counsel that this declaration gives such a description of the date of the bond. A careful examination of it, however, shows no attempt at such description, and merely the usual necessary allegation of the time when the contract was made. If, however, counsel are correct in their construction of the declaration, still there is no variance, because the bond read in evidence actually bears the date which it is claimed that the declaration ascribes to it, and it therefore conforms to the supposed description. It is no variance, however, from the substance of the issue to show that, though dated the first of July, it took effect only on the fifteenth, because, as we have already shown Opinion of the court. the precise time when the contract became obligatory need not be proved on trial. The attempt to show that, by the pleadings subsequent to the declaration, it became necessary to prove that the contract became obligatory on the very day alleged, is equally unsuccessful. The defendant, by his third plea, alleges that from July 1st to September 30th his principal was deputy postmaster, under an appointment not confirmed by the Senate, and that the bond sued on was applicable to this appointment and to this period alone, and that during that time no default or breach of its condition occurred. The replication is, that on the day of the date of the bond, and from thenceforward for four years, Beers, the deputy postmaster, held under the appointment confirmed by the Senate, and that the bond covered his transactions during that time. To this defendant rejoined that Beers was not postmaster under the appointment set forth in the replication, but under the first-a Presidential appointment-and that the bond covered only the time mentioned in the plea. As it was proved on the trial that the bond was accepted on the 15th July, 1850, it follows, under the former decision of this court, that from that time forth the bond covered his liability, and that it was under the last appointment. The plea of the defendant fails, therefore, except as to the time between the first and fifteenth of July. It is not perceived how the precise day when the bond took effect is material otherwise than this, and the court, by refusing to permit any breach to be proved within those fifteen days, would have fully protected the defendant. All these pleas have relation to the legal effect of the bond, and none of them describe a bond different from the one of fered in evidence. After the day had been fixed by proof at which the contract became binding, it was material that no breach should be proved before that time; but the proof which fixed that date was no variance from any pleading of the plaintiff, nor from the substance of any issue made in the case. Statement of the case. As these principles require a reversal of the case, it is not deemed necessary to notice the other exceptions, which are unimportant, and may not arise on a new trial. JUDGMENT Reversed. RAILROAD COMPANY v. LINDSAY. 1. The article 3499 of the Civil Code of Louisiana, which prescribes that "actions for the payment of freight of ships and other vessels are prescribed by one year," does not apply to a case where the plaintiffs were shipbrokers only and not shipowners, and where the contract was not one of affreightment. 2. A demand cannot be regarded as an open account where there is a contract which is the foundation of the claim, and which, though not fulfilled according to its letter, either as to the time or place of delivery, yet with the qualifications which the law under such circumstances imposes, determines the respective liabilities of the parties. 3. Where none of the evidence offered by a plaintiff is objected to below, and no exception taken to the findings of the court there, objection cannot be made in this court. 4. An allegation of variance between the averments of a petition and the findings of the court, where there is no allegation that the findings were unwarranted by the proofs, or that the judgment does not conform to the law and justice of the case as presented by the findings, will not be sustained. 5. Such case comes within the thirty-second section of the Judiciary Act, curing imperfections, defects, or want of form in the pleadings or course of proceedings, except such are specially demurred to. LINDSAY & Co., ship-brokers, of London, filed their petition in the Circuit Court for the Eastern District of Louisiana, in which-alleging a written contract between themselves and the New Orleans, &c., Railroad Company, the company bound itself to pay them "freights," at the rate of 25s. per ton, "in consideration of freightage to be furnished to Algiers, opposite New Orleans, for certain iron rails," &c.— they averred that, in pursuance of the aforesaid contract, they did furnish freightage for several thousand tons of such rails, from Wales to Louisiana, and that the balance of the freight upon the rails due them was $18,000, &c. Statement of the case. The defendants denied that the contract had been performed; claimed damages by way of "re-convention," and "pleaded the prescription of one year and three years;' that is to say, set up, in argument, the bar of limitation of one year, under article 3499 of the Civil Code, which prescribes, that actions "for the payment of the freight of ships and other vessels are prescribed by one year;" and the limitation of three years, to which an act of the Louisiana legislature limits actions upon open accounts. The court found, on a submission of the case to them, in accordance with the Louisiana practice, that a large portion of the rails had not been delivered within the time stipulated for; and that of these a portion had been sent, not to Algiers but to New Orleans, for the cost of removing which to New Orleans the plaintiff's were entitled to re-coup; that the time within which the freightage was to be furnished had been extended and limited by a subsequent agreement to a date fixed; that the railroad company refused to receive any rails delivered after that date; that the manufacturers resumed possession of these; that the company had not proved any special damage as resulting from the delay mentioned, and that this delay had been owing to the acts of Lindsay & Co., who had found, during the Crimean war, a more profitable employment for the ships. The court declared that the contract was not a contract for the payment of the freight of ships and other vessels, within article 3499 of the Civil Code set up; and overruling also the prescription of three years given by statute for open accounts, gave judgment in favor of the plaintiff below "for the whole amount of freightage, at the rates specified in the contract," allowing certain credits and the cost of transferring to Algiers those rails which had been improperly landed at New Orleans. The case came here on error, two errors being assigned. 1. That the court allowed the plaintiffs, Lindsay & Co., to recover on an express agreement, when it was found that they had never performed it. 2. That they had overruled the plea of prescription. |