A majority of the judges are of opinion that the special contract was put an end to by the concurrent act of the parties. The defendant sends word to the plaintiff that he can no longer retain the possession of the premises, but intends to abandon them. The-plaintiff directs a person, in the event of such abandonment, to take charge of them. After this, the defendant leaves the house- and lots, and the possession is resumed by the plaintiff. The special contract is thus given up, and the right of the plaintiff to-recover rent for the time the defendant enjoyed the premises must-be decided by the same rules as if the possession had been originally taken upon an understanding that the defendant should pay what was reasonable. The verdict of the jury is founded upon this view of the subject. Substantial justice has been done between the parties, and a new trial ought not to be granted.

dissenting opinion:

I dissent from the opinion of the court, given in this case, from-a conviction that the variance between the contract proved, and that set out in the declaration, is material and fatal. The sum laid-in the declaration, as the consideration of the lease, is $225. The-sum proved by the witnesses is $200 certain, and more if the defendant could afford it.

*1 do not perceive any resemblance between this case and those cited by the plaintiff. This contract has not been performed by either party. Eitch did not secure to Sargeant. the use of the-ferry for the term stipulated, in consequence of which Sargeant. left the premises before the term expired, under a belief that he had a right to do so. The contract is open, and the question between the parties seems to depend on its legal import, and the-effects of their acts under it. The plaintiff contends that he has a right to recover the full amount of rent stipulated to be paid for the term, and also damages for breach of the engagement to keep the premises and boat in repair, and to deliver them in good order. The defendant contends that, in consequence of the loss of the-*357ferry, lie was not bound to perform on his part, and that he is not answerable for rent or damage.

I do not see how these questions can be settled on the general •counts, or how such questions could exist, if the contract had been either abandoned or performed. If the plaintiff had proved the •contract precisely as he has stated it, the subject of controversy would have been the loss of the ferry and the damage done to the property, and whether the former exonerated the defendant from the payment of the whole or a part of the rent, and whether the latter entitled the plaintiff to damages, and, if so, to what extent?

These questions arise out of the contract, and must be determined by a reference to it. Their existence shows that the contract is •open and disputed, and the variance between .the contract charged, •and that proved at the trial, shows also that the terms of the contract are disputed.

I know of no exception to the general rule that a contract open and disputed must be declared on specially. As Eitch was bound to secure to the tenant the use of the ferry for the whole term, when, he failed to do so, he broke the contract. The defendant has also failed to perform it, by losing the boat, injuring the property, and withholding the rent, or a part of it; consequently, neither party has performed. The removal of Sargeant from the house, before the expiration of the term, was no abandonment of the contract; it was neither more nor less than a declaration that, having lost the ferry, he was not bound to perform, the *correctness or incorrectness of which depends on the terms of the contract. This fact does not assimilate the case to that class of cases in which the plaintiff abandons and sues to recover back his deposit, nor to the cases in which the plaintiff, having fully pei*formed, resorts to his general counts.