delivered the opinion of the Court.

The [question on the]' special instruction requested by the *323defendants is whether there was a fatal variance between the allegations of the declaration and the proof offered in support thereof.

The substance of the case made by the declaration seems to be that by the last agreement of the parties, the defendants were to transfer the $2,700 trust on the Hall street property to the 'Winchester Apartment House, which agreement, if carried out, would have left a sum of $1,700 in the title company for distribution, $1,000 of which was to be applied to the reduction of the first trust deed on the Winchester Apartment House, and $700 to be paid to the plaintiff, and that this was not carried out by the defendants, and that they refused her the $700.

Plaintiff testified to this preliminary agreement, and her proof shows that she conveyed her property to Mangan and took his conveyance to the Winchester Apartment premises. She introduced proof of the execution of a third deed of trust on the Winchester Apartment House for $1,000, instead of $2,700 as the agreement called for, and that she saw from the statement of the District Title Insurance Company that $1,700 would be paid over to the Capital Ilcalty Company on the TIall street property trust. This, in addition to the costs and charges contemplated in the settlement, consumed the whole of the cash paid by Mangan, and left no surplus of $700 or any other amount.

It seems then that the original contract of exchange with Mangan was carried out as contemplated, and that the second agreement, if made with defendants, was practically abandoned by this last act of giving the third trust deed for $1,000 upon the Winchester Apartment House, instead of $2,700 as plaintiff had previously stipulated; nor is there any evidence that this third trust deed was procured by fraud.

According to this, there was no sum of $700 due to plaintiff, and the proof failed to establish the allegations of the declaration.

The court should have given the instruction asked, and for. that reason the judgment is reversed with costs, and the cause remanded for another trial. Reversed.