The opinion of the court was delivered by Bennett, J. It is true that every party, to avoid a variance, must declare upon a contract according to its legal effect. The declaration is upon a note payable in fulled cloth, and we think a note payable in woolen fulled cloth supports it. The term, “ fulled cloth,” is understood, in common parlance, with us, to imply woolen fulled cloth. No one would understand it to the contrary.
It is also said in argument, that there is a difference between a note being payable in an article, at its cash price and its cash value, but it would seem to be a distinction without a difference. At all events it is beyond the comprehension of the court. Judgment of the county court is affirmed.