Morton v. McClure

Walker, J. The difference in the orthography of Japheth and Japhath is so slight, as to make no material difference in the sound, and cannot constitute a variance. To be allowed, the variance must be substantial, and it is not fatal when so slight, as to make no perceptible difference in sound. Stevens v. Stebbins, 3 Scam. R. 25. The demurrer to the plea in abatement for the misnomer, was therefore properly sustained. It is assigned as error that the finding of the jury was greater than the amount claimed by the bill of particulars, filed with the declaration. The practice act requires, that such a bill shall be filed, and one of its objects is, that the defendant shall be particularly apprised of what he has to meet on the trial. If the plaintiff were permitted to abandon the account filed, and rely upon an account not exhibited, the object of the enactment would be defeated. When the account has been filed', the party should be confined to the items, and the prices therein charged, unless leave is first granted by the court to amend the bill of particulars, on such terms as may be prescribed. The account filed by defendant in error in this case, was for $115.85, while the verdict was for $124.23, and the record nowhere discloses the fact, that any leave was given to amend, and the party not having obtained such leave, could not recover beyond the amount which he had claimed for his labor and property, furnished to the plaintiff in error. It was error to render judgment on this verdict. The plaintiff in error, filed a bill of particulars under his plea of set-off, for $64.09, and on the trial called his son as a witness, who testified that he and the wife of plaintiff in error, furnished the items charged in the bill to defendant in error, as a payment on his account, for the board of the wife and family of plaintiff in error. That defendant in error admitted that he had received all but the item of five dollars in money. Another son testified that he was sent for, when he was working for wages, to go to the defendant in error, to work for his board and go to school, which he did, and that this board is charged in the account against his father. That he worked for defendant nights and mornings, to pay for his board, during the time he went to school. These two witnesses, stand uncontradicted or impeached, by anything appearing in the record. And their evidence unimpeached, was amply sufficient to establish the set-off except the item for five dollars, and also to reduce the account sued on, to the extent of the board charged as furnished to the witness. But the account of the plaintiff in error, or any part of it, was not allowed, either under the general issue as a payment, or as a set-off, under the plea of set-off. We think the evidence fails to sustain the finding of the jury. The judgment is reversed and the cause remanded. Judgment reversed.