The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-01-11
w. r. D. Phipps
1916. vs..
Nathaniel Ingraham.

Nathaniel Ingraham. J
-. - the Circuit Court Of YdeoO County
oni,ion If the Court delivered by Justice
Harris. oDlaint in
a., c;rc,,;t Court of YaZOo county agaiiioO
nIaintiff in error on an open account e.
S10O for the rent of - acres OF i"n"
the year 1896. ,s1var de
~ The Indebtedness charged in the com
niaint. and there was ajury and NeIuI ~ i0
defendant in error for Sill 5o-IUu uoli'ii''
4 motion was made for new tTial' On
+1,a rronnd that the verdict was contrary 70
the law and evidence, which motio" w.
oL,errnled liz the Court to this Tulih2 -,
the Court plaintiff excepted ana Vei''''l'
his bill of exceptions. 80 nm
The first question material 1or US -
.;dor ari.es ON the sullicieucy OF fhe ,eSVF
m0Dy, appearing IN thlS "i''
f. sustain the action. 49,
~ dsfandant in error was introduced as
=, witness to prove the account SUED on. nc
sta+ed that about the ist OF January ZOO
nIaintiff in error agreed to rent OF NM
small tract OF land adjoining the IeSlA0I
of ulaintiffin elror and Tor tnat year 70 nm
certain improvements when ne ui"' "no
for the wear 1856, he agreed 10 oulIo oei
tain fence between the land IN question anu
dafandant in error that VIM. Phipps (tne
CON Of Dlaintitf in error) attended TO ms
fathers business during the year 1901 ana
nlaintiff in error occupied and cultivated tue
nIaoe that wear Soon after the list Jan
nary 1858. plaintiff in error Stll occupy lhS
the place. his son William came TO deIehtd dIi
i'm error and stated they would noO IA
time to build the cross fence, which was 10
-, Loan done for the rent of the year 1890,
ond desired to know what he would take IN
money in lieu of the fence; defendant III
error told him that he must nave one
| hundred dollars, which was all tnat VAS 9aiu
upOn the subject at the time. IhaU w llliail
| Phipps remained on the land and cultivated
| il. His father cultivated other lana III Tue
neighbOrhood. That William Fhlpps alCei
| the wear was out promised 10 pay the rem :,
which defendant in error said would be all
riobt He never did pay it, nor did his
| father, who said it was Williams debt, but
offered to paw fifty dollars to settle 1t, which
| defendant in error declined. That he never
| at any time rented the land to WIIllan
| Phipps Jr., and has no recollection OF VII
| 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 III error
| The complainant relies on an indtb6tGtuS
asSump8it for the rent of land. The eY
idence shows a special agreement to build a
certain fence in consideration of the rent OF
the land for the year 1855. 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 cOmplal
nant. In the case of Drake VS.. Surget, st
Miss. ASS, it is held that when the plaintiff
declares on a special 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 ne recover on 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 il
error, that the contract as proved by the de
i, PENDANT in error, is void by the statute o
/ frauds and perjuries. He shows that the
contract with plaintiff in error was made
about the LIST of January 1857, and that il
was verbal contract for the lease of land
J for longer term than a year.
| The motion for new trial should there
! fore have been sustained.
Let the Judgment be reversed, cause Ie-
] manded and IL reairG de moro awarded.