delivered the opinion of the court.

It is not material to decide whether the action is upon a promissory note or on an account for services rendered ; for if the petition is on the note, then there is no proof that the master of the boat had authority to bind the owner in that manner, and authority for that purpose would not be implied from the relation that subsisted between the master and the owner. If the action is on account of services actually rendered, the plaintiff was not entitled to recover on his petition, as the proof showed he had been fully paid for all the services he performed. The evidence tended to show a special contract, which would have entitled the plaintiff to a verdict if he had declared on it; but the variance between the proof and petition was so great that the plaintiff had no right to go to the jury without an amendment, which he did not ask.

Judgment will be affirmed.

dissenting. As the action of the court was calculated to take the party by surprise, there should have been allowed to the plaintiff the privilege of amending his petition. The judgment, in my opinion, should be reversed.