
    McGreal v. Wilson.
    A petition which alleged that the defendant contracted to pay the plaintiff a certain amount for aiding and assisting in seizing certain slaves belonging to and in possession of one -Stafford, and guarding them after such seizure, and that he did assist, without averring any right or authority in law for such seizure, was held bad on general demurrer, because it disclosed a contract to do what purported to be an illegal act.
    Where the petitioner alleges a contract to paya specific amount for services to*bc rendered, the plain tiff cannot recover so much as the services may reasonably be worth; and this, too, notwithstanding testimony as to the value of the services may have been admitted without objection.
    An instruction which submits to the jury whether a certain important fact has been proved, when no evidence of it whatever nas been introduced, is calculated to mislead the jury, and is error for which the judgment will be reversed, unless it appear that the jury were not misled. (Note 71.)
    Error from Brazoria. Suit by Wilson against McGreal for services “ren- “ tiered in aiding and assisting the ■said Peter McGreal in procuring possession “of certain negro slaves belonging to and in possession of one--— Stafford, “and further, in bringing said skives to the town of Brazoria, and in guarding “the possession of the said slaves, for which services your petitioner “represents that the said Peter McGreal undertook and faithfully promised “your petitioner to remunerate him by allowing him the free use and control “of two valuable negro slaves, when in the possession of the said Peter Mc-“Greal; the said McGreal binding himself to furnish to your petitioner two “slaves worth one hundred and fifty dollars each,” &c. “Further, your petitioner represents that the said McGreal undertook and promised to pay to “your petitioner the sum of three hundred dollars, in the event of his failure “to comply with his contract to deliver to your petitioner two valuable slaves, “as aforesaid.” That McGreal did fail, &c.
    The defendant demurred generally, and filed a general denial. The defendant’s demurrer was overruled. The plaintiff proved that the defendant contracted to let him have the use of two of the best negroes in the lot, as alleged in the petition, if he would assist him, as stated in the petition, assuring him that he had authority to seize the slaves; that defendant represented that the service would be accompanied with considerable hazard; that plaintiff performed the service; that the defendant refused to comply with his contract; and that the services of such negroes were worth one hundred and fifty dollars each per year; but did not prove that the defendant promised to pay the three hundred dollars, in case of his failure to let the plaintiff have the slaves.
    The defendant proved by a witness that he, witness, accompanied the defendant and E. F. Lenard, a deputy marshal of the United States, and aided in seizing about seventy slaves, same as alluded to in the petition; that the slaves were carried to the town of Brazoria, and there delivered to the defendant ; that the whole time occupied was five days; there were seven or eight other persons in company assisting; some of the company were armed; others seemed to think there was danger; witness did not; witness went at request of defendant; he was paid twenty-five dollars by the defendant for his services, and considered the compensation ample. It appeared that the defendant had been acting as receiver in a case pending in the United States District Court for this district.
    The defendant asked the court to charge the jury, in effect, (charges 1st and 3d,) that a receiver had no authority to make a contract to dispose of property placed under his care, and that such a contract would not be binding upon him; which charge the court gave, with the modification, that althougli such a contract would not be binding, yet that he would be bound by a promise to pay a specific sum of money, in case of his failure to deliver tiie property as agreed on.
    Verdict and judgment for the plaintiff for three hundred dollars. Motion for new trial overruled.
    
      J. B. Jones, for plaintiff in error.
    
      J. U. Bell, for defendant in error.
   Lipscomb, J.

The petition in this case is bad, and shows no legal cause of action. It sets out a parol contract for certain and fixed compensation to do what appears on the face of the proceedings to be an illegal act. It was for aiding and assisting in seizing certain slaves, “belonging to and in possession “ of one-Stafford, and guarding them after such seizure; ” and the petition avers no right or authority in law for such seizure, and it was manifestly a trespass, and in violation of law, to make such a contract, and absolutely void. .The demurrer, therefore, ought to have been sustained, and the court below erred in overruling it.

But this is not the only error. The suit was brought 115011 an express contract to give the services of the two slaves for one year, or the alternative of paying three hundred dollars; and the recovery of this three hundred dollars was the direct object and gist of the action ; and it will be seen, by reference to the statement of facte, tliat there was not the slightest scintilla of evidence of such a contract to pay the three hundred dollars; yet the jury found a verdict for the plaintiff for three hundred dollars, on which the judgment was rendered; and the court overruled a motion to grant a new trial. The verdict was without any evidence to support it, and ought, most clearly, to have been set aside. If there has been anything- settled by this court, it is that the alia-¡lata and. probata must correspond and agree; and no verdict or judgment 'can be sustained unless there has been an averment to let- in such evidence. (Mims v. Mitchell, 1 Tex. R., 443; Harrison v. Nixon, 9 Peters, 503.) The express contract being the only one set out and averred in the petition, evidence to support an implied contract could not be received. It would be a variance from the allagata. (Story on Contracts, secs. 12, 13, and 16; Chitty on Contracts, 25; Harrison v. Nixon, 9 Peters, 503.)

Note 71. — Lee v. Hamilton, 12 T., 413; Earle v. Thomas, 14 T., 583; Andrews ». Southwiek 20 T., Ill; Dodd v. Arnold, 28 T., 97; Patton v. Banker, 29 T., 402.

The modification given by the court to the first and third charges prayed by the defendant was predicated upon the supposition that there had been a contract stipulating a certain sum of money to be paid by the defendant on condition of his not giving the property, and was calculated to mislead the jury, and no doubt produced their verdict for the three lmudred dollars, when in truth there was no such contract proven. Had there been an allegation in the petition similar to the quantum, meruit count of the English declaration, the evidence would not have authorized a verdict for more than twenty-five dollars; but there being no such allegation the verdict ought to have been for the defendant. The judgment is therefore reversed and the cause remanded.

Keversed and remanded.  