
    Scott vs. Messick.
    June 10.
    Appeal from the Jessamine Circuit; William L. Kelly, Judge.
    AssumpSit.. Case 34.
    
      Pleading, Evidence, Allegation and Proof.
    
    Count for work & labor, &c. done by plaintiff on “ defendant’s walls,” is not Supported by evidence of work & labor done “ at the plaintiff’s request, on the farm of, and for the benefit of a third person.”
   Judge Davidge

delivered the opinion of tho Court.

Messick sued Thomas B. Scott, in an action of as-sumpsit, for work and labor in laying 133 1-3 perches of stone, in (he wall of said Scott, and for materials provided in and about the wall. Scott pleaded non as-sumpsit. The defendant moved the court to instruct the jury as in case of a nonsuit, which was overruled, and the plaintiff had a verdict and judgment, from which the defendant appealed.

The only question involved in this case, grows out of the opinion of the court below in refusing to give the instruction as asked.

On the trial, the plaintiff offered proof showing that he had done work for Mary Scott, the sister-in-law of the defendant, upon the farm, upon a special promise, which he contended bound the defendant personally; but which might, with at least equal propriety, be considered as made in the capacity of agent for Mary Scott, and binding on her only. Yet it would seem, under existing circumstances, (if the proof had been admissible under the declaration,) proper for the jury to decide to whom the credit was given.

The count,in such case, be

Mandate,-

Bibb, for appellant.

But the counts are general, for work done on a building of the defendant's; and if the proof had been of labor for the defendant, agreeably to recent adjudications, it might not defeat the action.

But here the consideration proved never could render the defendant liable, but upon a special promise; and being Variant from the declaration, the cause could not be sustained. That the contract must be truly stated, and proved as laid, see 1 Chitty 299, 1 Bibb 172.

judgment must be reversed with costs, cause remanded to the court below, for further proceedings to be had therein, not inconsistent with this opinion. 
      
       Absent, Ch. J. Barry.
     