
    Williams against Kinnard.
    JUNE, 1824.
    'Declaration st&t- ; ing an absolute 'contract not supported by evi- ‘ (fence shewing a contract in the ’alternative.
   ■.JUDGE EiKs

delivered thé opinion of the Court.

This was an action of assumpsit in the Circuit Court o‘t Perry County, by Williams against Kinnard. The first count in thé declaration is ah indebitatus assumpsit for meat, lodging, nursing, &c. furnished by plaintiff to defendant’s in-‘fafet' daughter at his request The second count'a quantum valebant for the same. A trial was had on the general issue. Thé plaintiff proved a contract of the défendant, by which defendant agreed to bind his . daughter to the plaintiff, or shoiild He refuse to bind her, to pay so much for boarding, nursing, and clothing the‘daughter for such time as the plaintiff-should keep ner as the boarding, &e. were worth ’; 'that defendant, refused to bind her to plaintiff! and that the jMintiff under the contract had boarded and clothed her, &c, for á certain time. The defendant by his Counsel moved the Court to instruct the Jury that this evidence did not support "the declaration, which charge was given: a bill of Exceptions taken to it, and a verdict and judgment rendered for the defendant. The plaintiff here assigns as Error this charge of the Circuit Court.

Thé declaration charged an unconditional arid absolute contract; the evidence proved a contract in the alternative, materirilly'different in its terms from that charged in thé declaration ; and we feel no hesitation in saying that, the charge of the Circuit Court was right. 2 East. 2. 2 Bos. and Pul. Shepham against Sanders.

'Let the Judgment be affirmed.

Judgé Saffold having presided on the trial below did 'riot sit.  