Knox v. Henderson & Taylor
| Decision Date | 01 June 1931 |
| Docket Number | 29144 |
| Citation | 135 So. 214,160 Miss. 476 |
| Parties | KNOX v. HENDERSON & TAYLOR |
| Court | Mississippi Supreme Court |
APPEAL AND ERROR.
Variance if any, between declaration and proof, held not available on defendant's appeal, in absence of proper objection to testimony before verdict.
APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.
Action by Henderson & Taylor against D. W. Knox. Judgment for the plaintiffs, and the defendant appeals. Affirmed.
Affirmed.
Chas. S. Mitchell, of Tupelo, for appellant.
The evidence as a whole fails to sustain the allegations of the declaration by a preponderance of same.
The rule is fundamental that a party must recover if at all, on the case made by his declaration or complaint, and if there is a failure to prove the cause of action as laid, even though a different one is proved, there can be no recovery on either. Any departure in the evidence from the substance constitutes a variance and is fatal and constitutes a failure of proof.
21 R. C. L. pleading, section 152, p. 609; 39 Corpus Juris M. & S. section 1186, p. 960; Wooten v. Milling Co., 54 So. 824; R. R. Co. v. Truette, 87 So. 430; Richards v. Lumber Co., 101 Miss. 678; Warner v. Goding, 107 So. 406; Tricy v. Seals, 109 So. 427; richards v. Director General, 107 So. 891; Powell v. Plant, 23 So. 399; Forsee v. R. R. Co., 63 Miss. 66; R. R. Co. v. Price, 72 Miss. 862.
Long & Maudlin, of Pontotoc, and S. H. Long, of Tupelo, for appellees.
The first point raised in the appellant's brief and argument is concerning what he charges to be a variance between the allegations of the plaintiff's declaration and the plaintiff's proof. In the first place there is no variance.
In the second place, admitting that there is a variance between the allegations of our declaration and our proof, it is now too late for appellant to take advantage of same. He made no objection directly on this point or one from which this point was suggested. There is nothing in the record prior to the rendition of the verdict which is even suggestive of the idea of a variance. This court will not entertain objections as to a variance made before it for the first time.
Stier v. Surget, 10 S. & M. 154.
Objection because of a variance must be explicitly made, and before verdict, that opportunity for amendment may be afforded.
Asking an instruction which is too general and indefinite to admonish the court or the opposite party of the point, will not suffice.
Greer v. Bush, 57 Miss. 575; Illinois Central Railroad Co. v. Catachey, 70 Miss. 332, 12 So. 253; Alabama, etc. Railroad Co. v. Ponder, 82 Miss. 568, 35 So. 155; Walker v. Saunders, 1 Miss. Dec. 50; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Illinois Central Railroad Co. v. Price, 72 Miss. 862, 18 So. 415.
This is a suit by real estate agents on an alleged oral extension of a written contract or option to sell certain real estate for a commission, and what is called "overage," being the excess of the sale price over the list price at which they were authorized to sell, and from a judgment in favor of said agents, this appeal was prosecuted.
The written contract between the appellees and the appellant authorized the appellees to negotiate sales of any of the lands described therein, for a period of three months, and obligated the appellant to pay to the appellees a stated commission, and all amounts received in excess of the selling price fixed in the contract. The theory of the appellees throughout the trial in the court below was that this written contract was extended by an oral agreement between the parties, and that the commissions and amounts sued for were earned while the oral extension of the contract was in force; and the testimony offered by the appellees fully supported that theory.
The appellant's contention made throughout the brief of his counsel, that the declaration avers that the sales in question were made after the...
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