| Miss. | Apr 15, 1892
delivered the opinion of the court.
The petition in this cause is based upon a sale to Fuller and Kimbrough jointly. The court properly overruled the motion to dismiss the petition, for it could not know that the contract, as stated, would not be proved. No objection was made to the evidence offered Iby the petitioner to establish the sale to Kimbrough alone. The slightest reflection should have suggested that in that way only can advantage be taken' of a variance between the cause of action as stated in the pleadings, and that sought to be proved. Our code, § 1134, provides that one or more of several joint- contractors may be severally sued, but it was never intended to permit a plaintiff’ to declare upon a joint contract, and recover upon a several one.
The second instruction for the plaintiff was directly upon the weight of evidence. The defendant was certainly entitled to have the jury determine whether the goods were charged upon the plaintiffs’ books to Fuller alone, because he was the purchaser, or whether such entries were for the convenience only of plaintiffs. This was a question of fact, and not of law, and the court should not have expressed any opinion concerning its solution.
Reversed, and remanded for a new trial.