CHARLESTON

#### Feamster *v.*Feamster.

Submitted January 17, 1905.

Decided February 21, 1905.

1. *Assumpsit*— Dedwation—Failure *of Proof .*

A case in Avhich the eA'idence fails to sustain the allegations of the declaration, (p. 249.)

Error to Circuit Court, Greenbrier County.

Action by Joseph A. Eeamster and another against S. W. N. Feamster. Judgment for defendant. Plaintiffs bring error.

*Affirmed.*

John W. Arbuckle, for plaintiff in error.

Preston & Wallace and Miller & Read, for defendant in error.

McWhorter, Judge:

Mary Eeamster and Joseph A. Eeamster brought their action of trespass on the case in *assxmvpsit*in the circuit court *247of Greenbrier county against S. W. N. Feamster. At the first term thereafter, on the loth of November, 1898, the defendant appeared and pleaded not guilty and issue was thereon joined. On the 22cl of November, 1900, the defendant demurred to plaintiff’s declaration, in which.the plaintiffs joined, which demurrer being considered by the court was sustained and leave given to plaintiffs to amend their declaration at bar and the case was continued. To which action of the court in- sustaining the demurrer plaintiffs excepted. At the July term a jury was empaneled and sworn and having heard the evidence returned a verdict for the defendant, when the plaintiffs moved the court to set aside the verdict as contrary to the law and the evidence, of which motion the court took time to consider, and on the third day of August the court having considered the motion to set aside the verdict and grant a new trial, and affidavits in support thereof, overruled the motion and gave judgment upon said verdict for defendant for costs, to which ruling of the court the plaintiffs excepted and were given thirty days in which to file bills of exceptions. There is but one declaration filed in the case and that contains onljr the common counts; nothing to indicate any amendment to the declaration or to show whether it is the original declaration filed, or an amended declaration. There is no special count in or filed with said declaration setting up any special agreement nor anything to show what the plaintiffs'are claiming, except a paper marked “Exhibit A,” which is copied into the record, which would appear to be intended as a bill of particulars, and is as follows:

> “S. W. 2s. Feamster,

> To Mary Feamster and Jos. A. Feamster.

> To value of oak logs and lumber which, you failed and refused

> to saw according to agreement and promise, 45,212 feet.$813.82

> To value of poplar logs and lumber which you failed and refused to saw according to- agreement and promise, 17,738 feet. 407.97 To buckeye logs and lumber which you failed and refused

> to saw according to agreement and promise, 2,363 feet. 29.64

> To value of Lynn logs and lumber which you failed and refused to saw according to agreement and promise, 465 feet. 10.70

> To interest on same 4 years. 302.91

> To timber and logs which you refused and failed to have cut and sawed according to agreement and promise. 500.00

> $2,065.04”

*248Tliere is nothing contained in the record by memorandum of the clerk or order of the court to connect this paper with the case, s^et it is sufficient on its face to show that it was intended as a bill of particulars' and indicates an agreement or agreements between the defendant and the plaintiffs whereby defendant was to saw certain lumber for plaintiffs and charging the defendant with refusing and failing to carry out his contract in that behalf; but the evidence offered in the case fails to show any contractual relation between defendant and the plaintiffs or either of them, either express or by implication. The plaintiffs introduced in connection with the testimony of plaintiff Joseph A. Feamster a certain contract in writing between said Joseph A. Feam-ster and one C. W. Schrader dated January 31, 1894, whereby the said Joseph A. Feamster was “To furnish all the saw timber that is standing, and now cut into saw logs, with the exception of what he may want to keep for rail timber * * * to be delivered at the two saw mill sets, and in a convenient way for rolling on saw skids or in the customary way of delivering logs to mill,” and to pay a stipulated sum per thousand feet for sawing and sticking said timber in good order the said Schrader to be paid for sawing out of the sales of the lumber as fast as it was sold. In the same connection plaintiffs offered an agreement in writing dated April 9, 1894, between S. W. FT. Feamster and the said C. *W.*Schrader whereby Schrader agreed to saw the logs then cut by Joseph A. Feamster and to stick the same when sawed, in the name of S. W. FT. Feamster until the said S. W. FT. Feamster should get $100 worth of sawed lumber, and an additional amount sufficient to pay the saw bill and when S. W. FT. Feamster should receive said amounts of lumber he was to turn over to Joseph A. Feamster the remainder of the lumber. Said Joseph A. Feamster further testified to his having a contract with Schrader for two sets on the land, one where they were then sawing and one at Sugar Creek Hollow, and that the defendant S. *W.*FT. Feam-ster had the mill moved on to his own land and prevented it from being moved to the Sugar Hollow on plaintiff’s land according to the contract with Schrader; “That when Schra-der was done sawing at defendant’s set he was anxious to come back and finish sawing for plaintiff, but said defendant *249said there should be no more timber cut on plaintiff’s land and Schrader took the mill away and did not come back. ” It is claimed by plaintiff in his testimony that Schrader would have come back and finished the sawing but for the action of the defendant S. W. N. Feamster who prevented him from so doing and caused him to violate his contract, and the evidence of Schrader who was used as a witness by plaintiffs tends to prove this fact. The evidence of plaintiff tends to prove that plaintiffs cause of action against defendant S. W. N. Feamster, if any they have, is an action of trespass on the case, and not trespass on the case in *assumpsit.*There 'is a fatal variance between the *allegata*and *probata.*The evidence utterly fails to support the action of *assumjisit*and counsel for the defendant must have had this in mind when he tendered the general issue in case, instead of *asswnpsit.*Plaintiffs having failed to support their declaration by their evidence, the judgment of the circuit court will have to be affirmed, but without prejudice to the rights of plaintiffs or either of them to bring such action hereafter as they may be .■advised.

*Affirmed.*