
    TAYLOR, &c. vs. HICKMAN.
    
      From the Fayette Circuit Court.
    
      Humphreys, for appellant; Haggin, for appellee.
    Nov. 30.
    The allegata and probata ought to corespond.
    An allegationthat rent was tobe paid on demand, is not supported by proof that it was to be paid at the end of the year.
   Opinion of

the Court.

THIS is an action of assumpsit, brought by Hickman against Taylor and Shoots, and was tried on the issue of non-assumpsit.

The first count in the declaration alleges, “ that the defendant on the - day of -, 1817, in consideration that the plaintiff, at the special request of the defendants, had rented to them and permitted them quietly to occupy a certain farm and its appurtenances, containing sixty-nine acres of arable land, enclosed from the - day of -, to the - day of -, which the said defendants held and occupied accordingly, promised the plaintiff to pay him on demand, the sum of $2 50 per acre therefor; and the plaintiff avers, that he did so let and rent the farm aforesaid, to the said defendants, and permitted them quietly to enjoy it; yet, though often requested, they have not paid the plaintiff the said sum per acre, for said sixty-nine acres,” &c.

On the trial, the plaintiff introduced a witness who deposed, that about the beginning of the year 1817, acting for the plaintiff below, he agreed with the defendants to lease to them for the ensuing year, sixty-nine acres of tillable land, on which were two tenements; and the defendants contracted jointly to receive the land in January, and were to have possession of the land so soon as they might want it, for which they were to pay the plaintiff at the end of the year, $2 50 per acre, and to make good certain described fences on the premises, and the plaintiff was to pay the defendants a fair price for all the rails they should make and put thereon; but no fences were made. But that the witness had no authority or instructions from the plaintiff to allow any thing for the rails, but was to write to the plaintiff on that subject, and if the plaintiff refused to ratify that part of the contract, he, the witness, had agreed to pay at the rate of one dollar per hundred for the rails; that the defendants had arranged between themselves, which tenement each should occupy; and that one of these tenements at the date of the contract was occupied by another tenant, who did not give it up as soon as was desired. This is, in substance, all the evidence which went to establish the agreement declared on. The counsel for the defendants moved the court to instruct the jury as in case of a nonsuit; but the court overruled the motion, and the defendants excepted, and this forms the question for this court now to decide.

It is an indisputable principle, in the action of assumpsit, that where there is a special agreement, the plaintiff must recover upon it; and that in proving this agreement, the proof must correspond with the agreement laid. By comparing the proof in this case, with the only special count, it will be seen, that the count has alleged the payment of rent was to be made on demand, and the proof is, that the payment was to be made at the end of the year. This variance is deemed substantial, and is too great to admit of a recovery by the plaintiff. For this, we conceive, the court ought to have given the instruction asked for.

Judgment reversed.  