The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1867-01-17
W. r. D. Phipps
e976. VS..

Nathaniel Tngraham
Error to the Circuit Court Of Yasoo County.
Opinion of the Court delivered by Justice
Harris
Defendant in error filed his complaint In
the Circuit Court of Yazoo county against
plaintiff in error on an open account for
800 for the rent of - acres of land for
the year 1858.
The plaintiff in error fled his answer do
nying the indebtedness charged in the com.
plaint, and there was a jury and verdict for
defendant in error for $llf $500 dollars
A melton was made for a new trial, on
the ground that the verdict was contrary to
tho law and evidence, which motion was
oyerruled by the Court; to this ruling of
the Court plaintiff excepted and rendered
his bill of exceptions.
The first question material for us to con-
slider arises ON the sufficiency of the testi-
mony, appearing in this bill of exceptions,
to sustain the action.
The defendant in error was introduced as
witness to prove the account sued on. lie
stated that about the LIST of January, 1857,
plaintiff in error agreed to rent of him, o
small tract of land adjoining the residence
of plaintiffin error, and for that year to make
certain improvements which he did. and
| for the year 1858, he agreed to build GER
| tain fence between the land IN questlon anu
| defendant in error that VIM. Pnlpps tine
| son of plaintiff in error) attended TO MS
fathers business during the year 1901, ana
plaintiff in error occupied and cultivated the
| place that year. Soon after the lst jan
| nary 1853, plaintiff in error still occupying
| the Mace his son William came to defendant
if@erfor and stated they would not have
time to build the cross fence, which was to
have been done for the rent OF the year 1858,
and desired to know what he would take In
&c +ha Hafan1onf ~
error told him that he must have one
hundred dollars, which was all that was said
upon the subject at the time. That William
Phipps remained on the land and cultivated
it. His father cultivated other land in the
neighborhood That William Phipps after
the year was out promised to pay the rent,
which defendant in error said would be all
right. He never did pay it, nor did his
father, who said it was Williams debt but
offered to pay fifty dollars to settle it, which
defendant in error declined. That he never
at any time rented the land to William
Phipps Jr,, and has no recollection of Will
liam ever proposing to rent it for himself
The building of the fence was worth a
hundred dollars.
This was all the testimony on the part of
the defendant in error
The complainant relies on an indebetdtus
assampsit for the rent of land. The ev-
luenee SHOWS Spectat agreement TO build q
certain fence in consideration of the rent of
the land for the year 1868. This variance is
fatal to the defendant in error. The rule is
we'll settled that the proof must agree with
and sustain the allegations of the complai-
nant. In the case of Drake VS.. Surget, Sc
Miss. 45S, it is held that when the plaintiff
declares on Especial agreement and also files
the common counts, if at the trial he proves
a special agreement, but materially different
from that laid in his declaration, he cannot
recover on any of the counts. He cannot
recover on the special counts because of the
variance: nor can he recover Oh the com
mon counts because special agreements have
been proven.
1t is proper to add, as the point is directly
made in the brief of counsel for plaintiff in
error, that the contract as proved by the de-
PENDANT in error, is void by the statute of
frauds and perjuries. He shows that the
contract with plaintiff in error was made
about the LIST Of January 1857, and that it
was verbal contract for the lease of land
for longer term than a year.
The motion for new trial should there
fore have been sustained.
etthe Judgment be reversed, cause re-
manded and a reaire de aoco awarded.