delivered the opinion of the Court.
This was assumpsit by the appellee against appellant for failing to deliver 2,000 bushels of corn." The plaintiff recovered a verdict and judgment thereon for $331.20.
Two points are made by appellant—first, that the contract was to perform the obligation of another, and not being in writing is voidable under the statute of frauds; second, that the court should have arrested the judgment because the declaration is not supported by the proof.
As to the first, it appears that the appellee had levied a distress warrant upon a quantity of corn belonging to John Williamson, who was the tenant of the appellee; and that the appellant, who was the son of the tenant and professed to have bargained for the corn, agreed to deliver to the appellee 2,000 bushels of the corn in cribs on the farm in consideration that the distress proceedings should be dismissed, which was done. For failure by appellant to fully comply with that agreement this suit was brought.
It was not a promise to pay the debt of another but a mere arrangement to relieve the property of a lien. Neither in terms nor in effect did the arrangement thus made contravene the statute of frauds.
As to the second, a variance between the allegations and the proof is no ground for a motion in arrest, though it might be for a motion for new trial.
No such objection was raised by the motion for new trial. The general allegation that the court admitted improper evidence for the plaintiff will not suffice. The declaration contained a special count alleging a contract to sell and deliver the corn, also the common money counts.
Assuming that the proof made did not fit the declaration the appellant should have made the point, specifically, at the time the proof was offered, and if the court considered it well taken leave would have been given to amend the declaration. The objection comes too late.
The judgment will be affirmed.