75 Miss. 325 | Miss. | 1897
delivered the opinion of the court.
1. The written statement of the cause of action filed with the justice of the peace, even after -its amendment in the circuit, court, was imperfect and did not state the real ground for recovery, and, if the appellant had been surprised or in any way misled by the erroneous statement of the cause of action, we should not and would not hesitate to reverse. But it is perfectly clear that the litigants fought the case out on the proper issue, and that the correct result has been reached, assuming, as we do, the conclusiveness of the jury’s verdict, and we decline to disturb the judgment because of the harmless variance between the written statement of the cause of action and the evidence offered to support it. Moreover, all proceedings in justices’ courts are, and must be, treated with great indulgence. It is the substance, and not the form, to which we look in such cases.
2. No contract is to be presumed to be fraudulent where, by its terms, no fraud appears. This contract of employment was made on September 19, and was capable of performance within twelve months from the date of its making. There is nothing to show that the performance was to begin a week or a day after its making. The record is silent on that point, and we are not to assume that there was a fraudulent intent on the part of the makers. The contract was-one, according to the view of the appellee, for twelve months’ service, and this view the jury adopted. From the evidence of appellee he began on the nineteenth, the day of the making of the contract. ' He says that, with his employer, he began to examine the books which he was to keep, under the supervision of that employer, and that such examination was suspended, at the suggestion of the employer, when the dinner hour arrived. He made his first
Affirmed.
