Kimbrough v. Ragsdale & Co.

Citations

• 69 Miss. 674

Syllabus

<p>1. Pleading. Practice. Variance. Premature objection.</p> <p>Where a petition to enforce a mechanic’s lien is against two, jointly, in advance of the testimony, it is proper to over-rule a motion to dismiss the suit on the ground that there is no joint liability.</p> <p>2. Variance. Sow availed of. Objection to testimony.</p> <p>A variance between the cause of action as stated in the pleadings, and that sought to be proved, can only be taken advantage of by objection to the testimony. Without such objection, the variance will not be considered on appeal.</p> <p>3. Instruction, Weight of evidence. Province of jury. Case.</p> <p>Where there is a controversy as to whether goods were sold to defendant or another, plaintiffs’ books showing that they were charged to such other for defendant, it is error to instruct that the manner of keeping the account was merely a matter of convenience for plaintiffs, “and does not change defendant’s obligation to pay the debt sued on, if he owes the same.” Such an instruction is on the weight of evidence. It is for the jury to say what effect, if any, is to be given to the manner of keeping the account.</p>