
    Harris v. Harris.
    
    May, 1824.
    Action on Case — Declaration—Evidence.—In an action on the case, the proof of the contract must conform to the contract laid in the declaration.
    This was an appeal from a judgment of the Superior Court of Law for Nelson county, affirming a judgment of the County Court.
    William B. Harris instituted an action of assumpsit in the County Court of Nelson, against Edward Harris. The declaration contained three counts. The first stated, that the plaintiff and a certain John L. Harris being partners in a store, under the firm of John L. Harris & Co., and a dissolution of the partnership being mutually proposed, the said John L. Harris after-wards 'agreed _ to purchase of the plaintiff; and the plaintiff, at the special instance and request of the said John L. Harris, and the' defendant, agreed to sell, and did actually sell him, at a price stipulated and agreed upon between them, all the *right, title, and interest, which he the said plaintiff had in and to the said goods, wares, and merchandize, credits arid other property of the said firm of John L. Harris & Co.; and, in consideration thereof, the defendant undertook for the said John L. Harris, and faithfully promised the plaintiff that the said John L. Harris should exonerate him, the plaintiff, from the payment of all debts at that time due, or which might thereafter become due, on account of the said firm of John L. Harris & Co. But, the plaintiff avers, that the said John L. Harris has not exonerated him from the payment of all debts which, at the time of the promise and undertaking aforesaid, were due, or might thereafter become due, on account of the said firm of John L. Harris & Co., but has hitherto failed and neglected to do so; in consequence whereof, the plaintiff hath been obliged and compelled to pay the sum of -, in discharge of a judgment rendered upon a bond bearing date the 13th day of February, 1817, and executed by the plaintiff and defendant to a certain Robert S. Moon, for and in consideration of a debt due from the said firm of John L. Harris & Co., conditioned for the payment of $766 48; which bond was afterwards assigned to one Jacob Moon.
    The second count states, that the defendant was jointly interested with the plaintiff in a certain mercantile establishment, known and conducted under the name of the store of John L. Harris & Co.; and the plaintiff, afterwards, at the special instance and request of the defendant, bargained and sold to the said John L. Harris (for the benefit of the defendant, as well as for the said John L. Harris, the said Harris and the defendant being partners, and jointly interested in .the said purchase from the plaintiff,) all the right, title, and interest, which he the plaintiff had, in and to the said mercantile establishment, to wit: the goods, merchandize, credits, and other property, of the said firm of John L. Harris & Co.; and, in consideration thereof, the defendant undertook, and faithfully *promised the plaintiff, to exonerate him from the payment of all debts then due, or which might thereafter become due, on account of the said firm of John L. Harris & Co. The plaintiff then avers the same breach as in the first count.
    The third count is a general count of indebitatus assumpsit for goods, wares, and merchandize, sold to the defendant, money lent and advanced, and paid, laid, out and expended, for the defendant.
    The defendant pleaded non assumpsit, and issue was joined.
    On the trial, the defendant filed a demurrer to the evidence of the plaintiff, to the following effect: One witness for the plaintiff proved, that William B. Harris and Edward Harris, in a conversation between them, spoke of a partnership that was in contemplation, at Bridgewater’s storehouse, in the county of Nelson: that the witness understood from them that they were to put in a stock of about $1,000 each: that the store was afterwards established at the place aforesaid, and was attended by John L. Harris and Robert S. Moon: that Edward Harris and William B. Harris were frequently at the store; and they seemed to take an interest, and act as proprietors in the store; but, whether as partners or not, was not known: that William Moon, the father of Robert S. Moon, was seen engaged in marking goods: that the mercantile business was to be conducted, and was conducted, in the name of Harris, Moon & Co.: that the witness understood, from the conversation before alluded to, between William B. Harris and Edward Harris, that John L. Harris was to be sent for from Richmond; but, if he did not come, Benjamin D. Harris, another son of Edward Harris, was to manage the business; but, the store was to be established at any event: that, at this time, John E. Harris was under age, between eighteen and nineteen years old.
    "‘Another witness, (Bridgewater,) stated, that William B. Harris and John E. Harris applied to him to rent his store-house, but did not rent it; that after-wards John L. Harris declined taking the house, and William B. Harris desired him to retain the house for some time; that he did retain it, and at a subsequent time, William B. Harris and Edward [larris came to him, and leased the house of him, to open a store; but, who were to open it, he did not know; that it was stated that John L. [larris was to be sent for from Richmond; but, if lie should not come, the store was to be established at any event. The witness supposed that Edward Harris, the father of John L. Harris, was renting the house for his son, until he came, but, if he did not come, that Edward Harris would carry on the business; that John E. Harris did come before any goods arrived; that sometimes, when Edward Harris was drinking, he would say he was a partner, but when he became sober, he would not say any thing about it; that the business was so managed, that the witness could not say that Edward Harris was a partner; but he heard Edward Harris and William B. Harris say, that if John E. Harris did not come from Richmond, and they could not get Robert S. Moon, Benjamin Harris and some other person were to manage the business; that the business was conducted under the firm of Harris, Moon & Co.
    Robert P. Shelton states, that he is a subscribing- witness to a paper in the following words: “For, and in consideration of the sum of twenty-two hundred dollars, payable agreeable to time stipulated, in bonds this day executed, I have sold unto John L. Harris my entire right, title and interest in the store of John E. Harris & Co.; said Harris exonerating me from the responsibility that would have devolved from the contracting of any debt or debts now due, or that may become due, on account of said firm; as also, from the payment of all goods charged me on the books of the late concern. In testi-435 mony whereof, I have "‘hereunto annexed my hand and seal this 28th day of February, 1818.
    Wm. B. Harris, (Seal.)
    Edward Harris.
    Witness,
    Robert P. Shelton.
    Witness,
    Joseph C. Roberts.”
    That the first firm was Harris, Moon & Co., and the firm that succeeded was John E. Harris & Co.; that after the written contract aforesaid, he heard John E. Harris say, he had no doubt William B. Harris considered a debt due to Moon, w~as included in the contract; but he, John E. Harris, had him fixed otherwise. John E Harris told the witness, that William B. Harris and Edward Harris owed the debt to Moon for his interest. The witness heard Edward Harris say, he had not made John E. Harris a right to one single cent; that he heard Edward Harris say, that he would give bond and security that no debt should come against William B. Harris, concerning the business of the store; that Edward Harris said frequently, that he had as much right as William B. El arris, to the store.
    Joseph C. Roberts states, that he was a subscribing witness to the paper above mentioned; that William B. Harris had been talking about a debt to Moon, when Edward Elarris said he would give security that no debt should come against William B. Harris, on account of the firm of John L. Harris & Co., and signed the aforesaid paper.
    There were several other witnesses examined nearly to the same purport as the foregoing. The record of the suit between Jacob Moon, assignee of Robert S. Moon, against Edward and William B. Harris, was also introduced; and the evidence of Moon’s attorney, proving the payment of the money, in satisfaction of the said judgment.
    The plaintiff joined in demurrer; and the jury found a conditional verdict for $766 48 cents damages, with legal interest, &c., if the law be for the plaintiff upon the first or second count of his declaration; but, if upon the third count only, they found for the plaintiff the sum of $383 24 cents damages, with leg-al interest, &c.; but, if the law be for the defendant, they found for the defendant.
    The Court gave judgment for the plaintiff on the first and second counts of the declaration, and that the plaintiff should recover $766 48 cents, with interest, &c.
    Upon an appeal to the Superior Court, the judgment of the County Court was affirmed. From which judgment, the appellant in the Court below, (the defendant in the County Court,) appealed to this Court.
    Eeigh, for the appellant.
    Wickham, for the appellee.
    May 13.
    
      
      For monographic note on Variance, see end of case.
    
    
      
      See generally, raonograpMc note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
   JUDGE GREEN,

delivered the following opinion, in which the other Judges concurred.

Admitting that the instrument of writing, under date of February 28, J818, signed and sealed by William B. Harris, and signed by Edward Harris, was an engagement on the part of Edward Harris, either that he would indemnify, or that John E. Harris should indemnify William B. Harris, against all responsibility for debts due, or to become due, on account of the firm of John L. Harris & Co., yet it seems to me, that the evidence does not support either the first or second count in the declaration. If, at the time of entering into that writing, the firm of John E. Harris & Co. consisted, as is alledged in the first count, of William B. and John E. Harris, then the debt in question, due to Moon, was not due from John L. Harris & Co., on account of that company. It was originally due from William B. and Edward Harris, and ’"there is no evidence to shew that it had ever devolved upon, or been assumed by, William B. and John E. Harris, trading under the firm of John L. Harris & Co.; so that Edward Harris’s stipulation aforesaid, did not extend to it.

If,^ as is alledged in the second count, William B. Harris and Edward Harris were partners, trading under the firm of John L. Harris & Co. (which I think a jury might reasonably infer from the evidence,) then Edward Harris’s stipulation aforesaid, extended to indemnify William B. Harris against this debt. But, that stipulation was entered into, upon consideration that William B. Harris would sell, and did sell, his interest in the firm, to John L. Harris; and not upon the consideration, as is alledged in that count, that the plaintiff sold his interest to John E. and Edward Harris; so that the contract proved, is not that laid in the declaration.

Upon the third count, for money advanced and paid by the plaintiff for the use of the defendant, the plaintiff is entitled to a judgment for a moiety of the debt, for which the parties were jointly liable, and all of which was paid by the plaintiff. The judgment should, therefore, be reversed, and judgment given for the lesser sum found by the jury.

I wish this could have been otherwise; for, it is apparent that the debt in question was intended to be embraced by the guarantee, and that John E. .Harris meditated a fraud upon the plaintiff, from the beginning.

Judgment reversed. 
      
      juDGB Cabelij, absent.
     