Baxter v. Knox

The declaration in this case is in covenant on a lease for “ an entire farm,” and the lease offered in evidence is not for an entire farm, but with reservations of certain parts of it, and which are not noticed or alleged in the declaration. The breach is, plaintiff did not enjoy the entire farm. The variance is palpable, and should have been so ruled by the Circuit Court. By the pleadings, as they stand, the plaintiff might recover damages of the defendant for withholding those very parts of the farm which, by the lease, he was authorized to withhold.

This objection was made at the Circuit Court and overruled, and exception taken, and is here assigned for error. The error is well assigned. It would be a safe mode, in pleading this lease, to set it out in lime, verba.

The judgment is reversed and the cause remanded.

Judgment reversed.