Opinion
05-13-1824
Harris v. Harris. [*]
Leigh, for the appellant. Wickham, for the appellee.
[Syllabus Material] [Syllabus Material] [Syllabus Material]
This was an appeal from a judgment of the Superior Court of Law for Nelson county, affirming a judgment of the County Court.
William B. Harris instituted an action of assumpsit in the County Court of Nelson, against Edward Harris. The declaration contained three counts. The first stated, that the plaintiff and a certain John L. Harris being partners in a store, under the firm of John L. Harris & Co., and a dissolution of the partnership being mutually proposed, the said John L. Harris afterwards agreed to purchase of the plaintiff; and the plaintiff, at the special instance and request of the said John L. Harris, and the defendant, agreed to sell, and did actually sell him, at a price stipulated and agreed upon between them, all the right, title, and interest, which he the said plaintiff had in and to the said goods, wares, and merchandize, credits and other property of the said firm of John L. Harris & Co.; and, in consideration thereof, the defendant undertook for the said John L. Harris, and faithfully promised the plaintiff that the said John L. Harris should exonerate him, the plaintiff, from the payment of all debts at that time due, or which might thereafter become due, on account of the said firm of John L. Harris & Co. But, the plaintiff avers, that the said John L. Harris has not exonerated him from the payment of all debts which, at the time of the promise and undertaking aforesaid, were due, or might thereafter become due, on account of the said firm of John L. Harris & Co., but has hitherto failed and neglected to do so; in consequence whereof, the plaintiff hath been obliged and compelled to pay the sum of ___, in discharge of a judgment rendered upon a bond bearing date the 13th day of February, 1817, and executed by the plaintiff and defendant to a certain Robert S. Moon, for and in consideration of a debt due from the said firm of John L. Harris & Co., conditioned for the payment of $ 766 48; which bond was afterwards assigned to one Jacob Moon.
The second count states, that the defendant was jointly interested with the plaintiff in a certain mercantile establishment, known and conducted under the name of the store of John L. Harris & Co.; and the plaintiff, afterwards, at the special instance and request of the defendant, bargained and sold to the said John L. Harris (for the benefit of the defendant, as well as for the said John L. Harris, the said Harris and the defendant being partners, and jointly interested in the said purchase from the plaintiff,) all the right, title, and interest, which he the plaintiff had, in and to the said mercantile establishment, to wit: the goods, merchandize, credits, and other property, of the said firm of John L. Harris & Co.; and, in consideration thereof, the defendant undertook, and faithfully promised the plaintiff, to exonerate him from the payment of all debts then due, or which might thereafter become due, on account of the said firm of John L. Harris & Co. The plaintiff then avers the same breach as in the first count.
The third count is a general count of indebitatus assumpsit for goods, wares, and merchandize, sold to the defendant, money lent and advanced, and paid, laid out and expended, for the defendant.
The defendant pleaded non assumpsit, and issue was joined.
On the trial, the defendant filed a demurrer to the evidence of the plaintiff, to the following effect: One witness for the plaintiff proved, that William B. Harris and Edward Harris, in a conversation between them, spoke of a partnership that was in contemplation, at Bridgewater's storehouse, in the county of Nelson: that the witness understood from them that they were to put in a stock of about $ 1,000 each: that the store was afterwards established at the place aforesaid, and was attended by John L. Harris and Robert S. Moon: that Edward Harris and William B. Harris were frequently at the store; and they seemed to take an interest, and act as proprietors in the store; but, whether as partners or not, was not known: that William Moon, the father of Robert S. Moon, was seen engaged in marking goods: that the mercantile business was to be conducted, and was conducted, in the name of Harris, Moon & Co.: that the witness understood, from the conversation before alluded to, between William B. Harris and Edward Harris, that John L. Harris was to be sent for from Richmond; but, if he did not come, Benjamin D. Harris, another son of Edward Harris, was to manage the business; but, the store was to be established at any event: that, at this time, John L. Harris was under age, between eighteen and nineteen years old.
Another witness, (Bridgewater,) stated, that William B. Harris and John L. Harris applied to him to rent his store-house, but did not rent it; that afterwards John L. Harris declined taking the house, and William B. Harris desired him to retain the house for some time; that he did retain it, and at a subsequent time, William B. Harris and Edward Harris came to him, and leased the house of him, to open a store; but, who were to open it, he did not know; that it was stated that John L. Harris was to be sent for from Richmond; but, if he should not come, the store was to be established at any event. The witness supposed that Edward Harris, the father of John L. Harris, was renting the house for his son, until he came, but, if he did not come, that Edward Harris would carry on the business; that John L. Harris did come before any goods arrived; that sometimes, when Edward Harris was drinking, he would say he was a partner, but when he became sober, he would not say any thing about it; that the business was so managed, that the witness could not say that Edward Harris was a partner; but he heard Edward Harris and William B. Harris say, that if John L. Harris did not come from Richmond, and they could not get Robert S. Moon, Benjamin Harris and some other person were to manage the business; that the business was conducted under the firm of Harris, Moon & Co.
Robert P. Shelton states, that he is a subscribing witness to a paper in the following words: " For, and in consideration of the sum of twenty-two hundred dollars, payable agreeable to time stipulated, in bonds this day executed, I have sold unto John L. Harris my entire right, title and interest in the store of John L. Harris & Co.; said Harris exonerating me from the responsibility that would have devolved from the contracting of any debt or debts now due, or that may become due, on account of said firm; as also, from the payment of all goods charged me on the books of the late concern. In testimony whereof, I have hereunto annexed my hand and seal this 28th day of February, 1818.
Wm. B. Harris, (Seal.)
Edward Harris.
Witness,
Robert P. Shelton.
Witness,
Joseph C. Roberts."
That the first firm was Harris, Moon & Co., and the firm that succeeded was John L. Harris & Co.; that after the written contract aforesaid, he heard John L. Harris say, he had no doubt William B. Harris considered a debt due to Moon, was included in the contract; but he, John L. Harris, had him fixed otherwise. John L. Harris told the witness, that William B. Harris and Edward Harris owed the debt to Moon for his interest. The witness heard Edward Harris say, he had not made John L. Harris a right to one single cent; that he heard Edward Harris say, that he would give bond and security that no debt should come against William B. Harris, concerning the business of the store; that Edward Harris said frequently, that he had as much right as William B. Harris, to the store.
Joseph C. Roberts states, that he was a subscribing witness to the paper above mentioned; that William B. Harris had been talking about a debt to Moon, when Edward Harris said he would give security that no debt should come against William B. Harris, on account of the firm of John L. Harris & Co., and signed the aforesaid paper.
There were several other witnesses examined nearly to the same purport as the foregoing. The record of the suit between Jacob Moon, assignee of Robert S. Moon, against Edward and William B. Harris, was also introduced; and the evidence of Moon's attorney, proving the payment of the money, in satisfaction of the said judgment.
The plaintiff joined in demurrer; and the jury found a conditional verdict for $ 766 48 cents damages, with legal interest, & c., if the law be for the plaintiff upon the first or second count of his declaration; but, if upon the third count only, they found for the plaintiff the sum of $ 383 24 cents damages, with legal interest, & c.; but, if the law be for the defendant, they found for the defendant.
The Court gave judgment for the plaintiff on the first and second counts of the declaration, and that the plaintiff should recover $ 766 48 cents, with interest, & c.
Upon an appeal to the Superior Court, the judgment of the County Court was affirmed. From which judgment, the appellant in the Court below, (the defendant in the County Court,) appealed to this Court.
Judgment reversed.
Leigh, for the appellant.
Wickham, for the appellee.
OPINION
Green, Judge delivered the following opinion, in which the other Judges concurred. [*]
Admitting that the instrument of writing, under date of February 28, 1818, signed and sealed by William B. Harris, and signed by Edward Harris, was an engagement on the part of Edward Harris, either that he would indemnify, or that John L. Harris should indemnify William B. Harris, against all responsibility for debts due, or to become due, on account of the firm of John L. Harris & Co., yet it seems to me, that the evidence does not support either the first or second count in the declaration. If, at the time of entering into that writing, the firm of John L. Harris & Co. consisted, as is alledged in the first count, of William B. and John L. Harris, then the debt in question, due to Moon, was not due from John L. Harris & Co., on account of that company. It was originally due from William B. and Edward Harris, and there is no evidence to shew that it had ever devolved upon, or been assumed by, William B. and John L. Harris, trading under the firm of John L. Harris & Co.; so that Edward Harris's stipulation aforesaid, did not extend to it.
If, as is alledged in the second count, William B. Harris and Edward Harris were partners, trading under the firm of John L. Harris & Co. (which I think a jury might reasonably infer from the evidence,) then Edward Harris's stipulation aforesaid, extended to indemnify William B. Harris against this debt. But, that stipulation was entered into, upon consideration that William B. Harris would sell, and did sell, his interest in the firm, to John L. Harris; and not upon the consideration, as is alledged in that count, that the plaintiff sold his interest to John L. and Edward Harris; so that the contract proved, is not that laid in the declaration.
Upon the third count, for money advanced and paid by the plaintiff for the use of the defendant, the plaintiff is entitled to a judgment for a moiety of the debt, for which the parties were jointly liable, and all of which was paid by the plaintiff. The judgment should, therefore, be reversed, and judgment given for the lesser sum found by the jury.
I wish this could have been otherwise; for, it is apparent that the debt in question was intended to be embraced by the guarantee, and that John L. Harris meditated a fraud upon the plaintiff, from the beginning.
Judgment reversed.
VARIANCE.
I. Between Process and Pleading.
A. Material Variances.
B. Immaterial Variances.
C. Objections.
1. When Made.
2. When Waived.
3. How Made.
a. Craving Oyer.
D. Amendment.
II. Between Pleading and Proof.
A. General Rule.
1. In Actions at Law.
B. Rule Qualified.
1. Material Variances.
a. In Actions on Written Agreements.
b. In Actions on Oral Agreements.
c. In Actions on Implied Agreements.
d. Motion to Dismiss Appeal.
2. Immaterial Variances.
a. In Actions on Written Agreements.
b. In Actions on Parol Agreements.
c. In Actions on Implied Agreements.
d. Avoiding Effect of Variance.
e. Objection.
(1) When Made.
(2) How Made.
f. Amendments in Civil Matters.
(1) General Rule.
(a) In Particular Cases.
g. In Criminal Matters.
(1) Material Variances, between Indictment and Proof.
(2) Immaterial Variances, between Indictment and Proof.
h. Objection.
C. In Suits in Equity.
1. General Rule.
2. Rule Qualified.
a. Decree Must Conform to Allegations.
3. Amendment.
III. Between Declaration and Verdict.
Cross References to Monographic Notes.
Abatement, Pleas in, appended to Warren v. Saunders, 27 Gratt. 259.
Accessories, appended to Maybush v. Com., 29 Gratt. 857.
Amendments, appended to Snead v. Coleman, 7 Gratt. 300.
Assumpsit, appended to Kennaird v. Jones, 9 Gratt. 183.
Attachments, appended to Lancaster v. Wilson, 27 Gratt. 624.
Autrefois, Acquit and Convict (Jeopardy), appended to Page v. Com., 26 Gratt. 943.
Bail and Recognizance, appended to Higginbotham v. Browns, 4 Munf. 516.
Bonds, appended to Ward v. Churn, 18 Gratt. 801.
Common Carriers, appended to Farish v. Reigle, 11 Gratt. 697.
Damages, appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455.
Decrees, appended to Evans v. Spurgin, 11 Gratt. 615.
Ejectment, appended to Tapscott v. Cobbs, 11 Gratt. 172.
Evidence, appended to Lee v. TapscottWash. (VA) 276.
Fraud, appended to Montgomery v. Rose, 1 Patton & H. 5.
Gaming, appended to Neal v. Com., 22 Gratt. 917.
Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
Intoxicating Liquors, appended to Thon v. Com., 31 Gratt. 887.
Judgments, appended to Smith v. Charlton, 7 Gratt. 425.
Malicious Prosecution, appended to Guerrant v. Tinder, 1 Gilmer 36.
Process, appended to Myrick v. Adams, 4 Munf. 366.
Statutory Bonds, appended to Goolsby v. Strother, 21 Gratt. 107.
Verdict.
I. BETWEEN PROCESS AND PLEADING.
A. MATERIAL VARIANCES.
Mistake in Middle Name.--It was held in Ming v. Gwatkin, 6 551, that, a suit begun in one name will not justify a declaration and judgment in another; therefore, if a plaintiff has two baptismal names, and a mistake is made in the second, or middle name, it is a misnomer, and a fatal error, not only on a plea in abatement, but on a judgment by default. Ming v. Gwatkin, 6 551. But see Dabneys v. KnappGratt. 354; Long v. Campbell, 37 W.Va. 665, 17 S.E. 197.
Writ in Assumpsit, Declaration in Covenant.--And, where the writ is in assumpsit and the declaration in covenant, and a judgment goes by default, the writ is a part of the record, and the variance will be held fatal. Wainwright v. Harper, 3 Leigh 270. See Ming v. Gwatkin, 6 551.
Costs Laid in Declaration, Not in Writ.--So, too, it is error to claim costs of protest in the declaration when such costs are not demanded in the writ. Hatcher v. Lewis, 4 152.
Number of Defendants Variant.--In debt on bond against the heirs of obligor, if the writ, which is made a part of the record by oyer, be against four persons as heirs, and the declaration only sets out three as such, the variance is of such a nature as to preclude a recovery. Watson v. Lynch, 4 Munf. 94.
B. IMMATERIAL VARIANCES.
Declaration in Assumpsit, Writ in Trespass.--But, where the declaration is in assumpsit and the writ runs in trespass on the case, it is no variance, the distinction having been abolished. N. Y., P. & N. R. R. Co. v. Kellam, 83 Va. 851, 3 S.E. 703.
Declaration Claiming Interest, the Writ Not.--And, where the declaration claims interest, which is not claimed in the writ, it is not objectionable, since interest follows the principal. Hatcher v. Lewis, 4 152.
After Issue Joined and Verdict.--Where issue has been joined upon a plea to the action, and verdict, the verdict will not be arrested because of variance between the declaration and writ, the writ, in such case being a part of the record for the purpose of amendment only. Payne v. GrimMunf. 297. See Bradley v. Welch, 1 Munf. 284.
In Initial Letters of Plaintiffs' Names.--In action by partners the writ sets out the initial letters of the middle name of one of the parties plaintiff to be P., and the account states it to be B., but in both writ and count the partnership's name was given. It was held an immaterial variance. Dabneys v. KnappGratt. 354.
As to the First Christian Name.--And, there is no variance where the writ states the first christian name of plaintiff by the initial letter, and count states the name in full. Dabneys v. KnappGratt. 354. See Long v. Campbell, 37 W.Va. 665, 17 S.E. 197.
As to Damages.--Where the writ lays the damages at $ 500, and the count lays them at $ 600, and the jury assess the damages at $ 455.16, it was held that the variance between the writ and count was immaterial. Dabneys v. KnappGratt. 354. See Long v. Campbell, 37 W.Va. 665, 17 S.E. 197; Roderick v. R. R. Co., 7 W.Va. 54.
Verdict Exceeding Amount Claimed in Writ.--Nor, will a new trial be granted, after verdict, because the amount of damages assessed by the verdict exceeds the amount claimed in the writ, but not the amount laid in the declaration. Roderick v. R. R. Co., 7 W.Va. 54. And see Dabneys v. KnappGratt. 354.
Names Held to Be Idem Sonans.--And, where the summons recites the name of plaintiff as " Saffle" and the declaration declares against him as " Saffell," there is, in fact, no variance, the names being idem sonans. The defect was not such as to prevent the court from rendering judgment according to the very right of the case. Hoffman v. Bircher, 22 W.Va. 537.
Writ in Convenant, Declaration in Debt. --In Pate v. Spotts, 6 Munf. 394, it was held that " If the writ be in covenant and the declaration in debt, and the defendant plead 'covenant performed,' the writ may be resorted to at the trial to show the true date of the institution of the suit." Pate v. Spotts, 6 Munf. 394.
C. OBJECTIONS.
1. When Made. --If plaintiff, by consent of parties be allowed to amend his declaration, after issue joined, the defendant ought not to be permitted to plead in abatement any variance between the, amended declaration and the writ, which equally existed between the writ and the the original declaration. Moss v. Stipp, 3 Munf. 159.
2. When Waived. --In an action of trespass, the original summons stated damages at $ 15,000; copy at $ 1,500. The variance could be take advantage of only by plea in abatement; and, at least, was waived by failure to object before verdict. R. & D. R. R. Co. v. Rudd, 88 Va. 648, 14 S.E. 361.
3. How Made. --And, an amendable variance between the declaration and writ can only be taken advantage of by plea in abatement, and not on motion to correct the judgment after it has become final. Anderson v. Doolittle, 38 W.Va. 629, 18 S.E. 724. See also, Layne v. Ohio River R. Co., 35 W.Va. 438, 14 S.E. 123; Hinton v. Ballard, 3 W.Va. 582; Beckwith v. Mollohan, 2 W.Va. 477; Roderick v. R. R. Co., 7 W.Va. 54.
a. Craving Oyer. --Variance between the writ and declaration cannot be taken advantage of without craving oyer of the writ; yet, reference to it may be had to amend by without oyer. Stephens v. WhiteWash. (VA) 203. And see Pate v. Spotts, 6 Munf. 394.
D. AMENDMENT. --A variance between the writ and declaration may be amended at any time before judgment, if substantial justice may be done thereby. Courson v. Parker, 39 W.Va. 521, 20 S.E. 583.
II. BETWEEN PLEADING AND PROOF.
A. GENERAL RULE.
1. In Actions at Law. --It is a general rule, that the proof must conform to the allegations. Forbes v. Hagman, 75 Va. 168; M'Alexander v. Montgomery, 4 Leigh 61; Butcher v. Hixton, 4 Leigh 519; Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366; James v. Adams, 8 W.Va. 568; B. & O. R. R. Co. v. Rathbone, 1 W.Va. 87; Scott v. Baker, 3 W.Va. 285; Olinger v. M'Chesney, 7 Leigh 660; B. & O. R. R. Co. v. Skeels, 3 W.Va. 556; Davisson v. Ford, 23 W.Va. 617; Newell v. Mayberry, 3 Leigh 250; Simmons v. Ins. Co., 8 W.Va. 474.
And, in Harris v. Harris431, it is held that, in actions on the case, the proof of the contract must conform to the contract laid in the declaration. See Couch v. HooperLeigh 557.
B. RULE QUALIFIED. --But the rule that the proof must conform to the allegations is to be applied where the allegations are material. Williams v. B. & O. R. R. Co., 9 W.Va. 33. See Wroe v. Washington, 1 Wash. (VA) 357; Whitlock v. RamseyMunf. 510.
It is said, however, in Olinger v. M'Chesney, 7 Leigh 660, that if the averments be immaterial, yet, if they relate to the cause or ground of action, they must be proved as recited.
1. Material Variances.
a. In Actions on Written Agreements.
Must Set Out and Prove Whole Consideration.--In declaring on a special contract, it is necessary to set out the whole consideration on which is based the defendant's promise, and it must be proved as stated, or the plaintiff will fail because of the variance. Davisson v. Ford, 23 W.Va. 617.
Variance in Date.--The declaration on a bond alleges the date to be 1811, but, upon oyer, it proves to be dated 1810. The variance was fatal. Bennett v. Giles, 6 Leigh 316. See also, Davis v. Miller, 14 Gratt. 1; Damarin v. Young, 27 W.Va. 436.
And, if, in suit on a bond the declaration describes it as bearing date the 4th of Jan., 1773, and the bond produced shows it to be dated 4th of Jan., 1775, the variance is fatal. Gordon v. Brown, 3 Hen. & M. 219.
So, when the declaration declares on a certain promissory note, mentioning no place of payment, dated Aug. 9, 1884, and the plea is nil debit, it is, error to introduce in evidence a note dated Aug. 9, 1883, payable at the Kanawha Valley Bank, the variance being fatal. Damarin v. Young, 27 W.Va. 436. See Bennett v. Giles, 6 Leigh 316.
Count not Averring Condition.--Where there is a plain variance between the declaration and the bond offered in evidence it should not go to the jury. Harris v. Lewis, 5 W.Va. 575. See James v. Adams, 16 W.Va. 245; Knights of Pythias v. Weller, 93 Va. 605, 25 S.E. 891.
Misnaming Character of Obligee--It is fatal variance to offer in evidence a bond executed to A., surviving partner of A. B. & Co., on a declaration making profert of a bond to A. Moore v. Fenwick, 1 Gilmer 214. See Peter v. Cocke, 1 Wash. (VA) 257.
Declaration at Variance with Judgment Sued on.--And where a declaration on an executorial bond alleges the recovery of a judgment de bonis testoris against the executor, and an execution issues thereon, with return of nulla bona, it is not supported by the introduction of a judgment against the executor de bonis propriis. State v. Seabright, 15 W.Va. 590.
In Allegation and Record Vouched.--In motion on official bond, and issue joined on nul tiel record, plaintiff vouches the order of approval of the county court, showing the names of eight persons as sureties, and offers in evidence a bond containing the names of the principal and eight sureties, but signed by only seven. The variance was held material. Blanton v. Com., 91 Va. 1, 20 S.E. 884.
Declaration, Evidence and Judgment Varlant.--And, in an action on a bond, a variance between the declaration and the evidence, and between the judgment and the declaration, is fatal. Cook v. Berkley, 3 Call 378.
Misdescribing Firm Name.--W. sues H., H. & McC., as partners under the firm and style of H., H. & Co., and process is served on H. only, who pleaded nil debit and filed affidavit denying partnership. On trial it was proved there was a partnership at the time of the execution of the note sued on, under the firm and style of H., H. & Co., composed of H., H. & T., it was held that the allegation and proof were fatally variant. Urton v. Hunter, 2 W.Va. 83.
Misstating Number of Partners.--And where the action is against a firm, which the declaration avers to be composed of five named persons, and the proof shows the firm contracted the debt, but at the time three of the parties named were not members of the firm, no judgment can be entered against said individuals as such firm. Adams & Co. v. Powers, Blair & Co., 82 Va. 612.
Misdescription of Amount and Time.--Under plea of nil debit it is necessary that the note produced in evidence should correspond with the one described in the declaration. Therefore, if note is described as for " three hundred and forty dollars," payable " two months after the date thereof," and the one offered in evidence is for " three hundred and forty-two dollars and twenty-five cents," payable " sixty days after date," the variance is fatal, and the note will be excluded. Scott v. Baker, 3 W.Va. 285.
Not Demanding Interest.--If, in an action on a note bearing interest, the declaration does not demand the interest, and the defendant withdraws his plea, the court cannot give judgment for interest, because of the variance. Hubbard v. Blow, 4 Call 224.
Must State Qualifying Exceptions.--And, if, in an action on an insurance policy the declaration fails to state all the exceptions contained in the policy which materially qualify the defendant's liability; or exempt it from all responsibility, absolutely, in certain instances, the variance is fatal. Simmons v. Ins. Co., 8 W.Va. 474. See Newell v. Mayberry, 3 Leigh 250.
So that, if the declaration alleges the insurance money was to be paid to the plaintiff in sixty days after notice and proof of the same, while the policy produced states the " amount of loss or damage to be estimated according to actual cash value of the property at the time of loss, and to be paid in sixty days after due notice and proof of the same, by the assured and received at this office," the variance is material. Simmons v. Ins. Co., 8 W.Va. 474. See Newell v. Mayberry, 3 Leigh 250; James v. Adams, 16 W.Va. 245.
Where Liability Shifted.--And, in an action on an insurance policy, if the declaration avers that the contract sued on was made by the defendant corporation, and the proof shows that the contract was in fact made by another corporation whose liability had become that of the defendant, there is a variance between the allegation and the proof, and the latter should be rejected. Knights of Pythias v. Weller, 93 Va. 605, 25 S.E. 891.
When Contract Limited.--Declaration in assumpsit on a written agreement, takes no notice of a note subjoined to the agreement, limiting its continuance to a day certain; the agreement offered in evidence on the general issue, has such note subjoined thereto: This was held to be a fatal variance between the agreement laid in the declaration and the agreement offered in evidence; and the agreement is not admissible evidence, unless it appear that the note was subjoined, without the plaintiff's knowledge or consent, and so was no part of the agreement. Newell v. Mayberry, 3 Leigh 250. See Simmons v. Ins. Co., 8 W.Va. 474; Davisson v. Ford, 23 W.Va. 617; James v. Adams, 16 W.Va. 245.
Where Bill of Particulars Filed.--If, in assumpsit, bill of particulars be filed, and there is no count in the declaration based upon the claim specified in such bill, the items contained in it cannot be proven, and no recovery can be had therefor. Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366.
Evidence of Special Agreement, When Counts General.--In an action of general indebitatus assumpsit, for services rendered as an overseer, or of quantum meruit for like services, evidence that defendant employed him as overseer and was to pay him a certain quantity of tobacco was improper. Brooks v. ScottMunf. 344, distinguishing M'Williams v. Willis, 1 Wash. 199.
When no Count for Cause of Action Shown by Proof.--The allegata and probata must correspond; and so, where there is no count in the declaration on the cause of action shown by the evidence, it is a variance, and there can be no recovery. Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366. See Dresser v. Trans. Co., 8 W.Va. 553.
b. In Actions on Oral Agreements.
Sustained by Agreement in Writing.--Assumpsit on an oral contract may be sustained by an agreement in writing to the same effect, but an action of debt on a promissory note cannot be sustained by evidence of an oral acknowledgment of debt, or by any express promise by words to pay the sum demanded in the declaration. Butcher v. Hixton, 4 Leigh 519. And see M'Williams v. Willis, 1 Wash. 199.
Contract Stated in Special Count.--In an action on a special, verbal contract, where the contract is stated in a special count in the declaration, and at the trial the plaintiff clearly proves, by a witness or witnesses, a contract which is materially variant from that described in the declaration, it is competent for the court on motion of the defendant, to exclude such evidence from the consideration of the jury, because of such variance, when considering the evidence in the most favorable light for the plaintiff, and no question of credibility is involved, the variance is manifest. James v. Adams, 8 W.Va. 568. See Dresser v. Trans. Co., 8 W.Va. 553.
c. In Actions on Implied Agreements.
Proof Confined to Negligence Charged.--Whatever latitude may be allowed in charging negligence, a plaintiff will not be heard to charge one ground of negligence in his declaration and recover on another. Rich, R. & E. Co. v. West, 100 Va. 184, 40 S.E. 643. See Eckles v. N. & W. R. R. Co., 96 Va. 69, 25 S.E. 545; Bush v. Campbell, 26 Gratt. 403; B. & O. R. R. Co. v. Whittington, 30 Gratt. 805.
So that, an averment in a count of a declaration that plaintiff " was thrown" from a car is not supported by proof that she jumped from it. R. R. & E. Co. v. Bowles, 92 Va. 738, 24 S.E. 388.
And when a declaration, based on negligence, states a particular act as the cause of the damage, no evidence of other acts causing it can be given. Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733.
Action against Common Carriers, or Bailees.--Where a declaration in assumpsit charges common carriers or bailees for hire, for loss or damages generally, and an agreement is proved, showing that the transportation was at the plaintiff's risk, which imposed a different liability from that charged, a verdict rendered against the carriers should be set aside because of the variance. B. & O. R. R. Co. v. Rathbone, 1 W.Va. 87.
After Issue Joined, and Evidence in Chief.--In an action at law, where defendant appears and pleads the general issue, and the plaintiff introduces all his evidence in chief and rests, if it clearly appear to the court that the evidence introduced fails to support the issue on the part of the plaintiff, it should be excluded from the jury. Dresser v. Trans. Co., 8 W.Va. 553. See also, James v. Mitchell, 8 W.Va. 568.
Tort, Founded on Contract.--When an action of tort is founded on a contract, a variance from the contract alleged will be as fatal as in an action on the contract itself. Olinger v. M'Chesney, 7 Leigh 660.
Character in Which Plaintiffs Sue.--If, in a suit on an administration bond, the declaration does not show that the plaintiffs sue as justices of the court, it is a fatal variance and such administration bond cannot be given in evidence. Cabell v. Hardwick, 1 Call 345. See Peter v. Cocke, 1 Wash. (VA) 257; Moore v. Fenwick, 1 Gilmer 214; Richardson v. Prince George, etc., 11 Gratt. 190.
d. Motion to Dismiss Appeal.
Case Agreed.--Where on motion to dismiss an appeal, parties agree the case by detailing the evidence, and admit the facts stated therein, the evidence detailed being in some respects variant, the court can give no judgment. Jackson v. Henderson, 3 Leigh 196.
2. Immaterial Variances.
a. In Actions on Written Agreements.
Declaring against One of Several Obligors.--Though plaintiff declare against one of several obligors, without stating they were severally bound, yet if the bond appear to be joint and several, the variance is immaterial. Meredith v. Duval, 1 Munf. 76.
Setting Out the Obligors.--And it was held to be no variance, where the declaration alleged, in suit on a bond, that the " obligors bound themselves to indemnify," and the bond showed they bound themselves, their heirs, executors and administrators, jointly and severally. Dickinson v. Smith, 5 Gratt. 135.
Setting Out Date of Award Sued on.--Variance between the date of the bond declared on and that recited in the award is not fatal, if they agree in every other particular Ross v. Overton, 3 Call 309, distinguishing Turner v. MoffettWash. (VA) 70.
Misnomer in Notice.--And, in an action instituted on a bond by notice, which notice describes one of the sureties on the bond as James Sims, the evidence showing the name to be subscribed to the bond as Jas. Sim, the variance is immaterial. Beasley v. Robinson, 24 Gratt. 325.
Omitting Obligor's Residence. --It is not a material variance to omit from the declaration the name of the county where obligor resides, though it was contained in the bond sued on. Evans v. Smith, 1 Wash. (VA) 72.
Omitting Party to Be Benefited.--And, where the declaration recites that the bond sued on was given to " W. P.," and the one offered in evidence is to " W. P., of the county of S., on account of P. & G., of Glasgow," it was held, that the omission to state in the declaration the county, or for whose use the debt was contracted, was not a material variance. Peter v. Cocke, 1 Wash. (VA) 257. Compare Cabell v. Hardwick, 1 Call 345; Moore v. Fenwick, 1 Gilmer 214.
And so the party with whom a contract is made may maintain an action at law thereon in his own name, and, if the recovery be for the benefit of another, that fact may be set out in the declaration, or endorsed on the writ or the declaration, but the statement or endorsement is unnecessary, and is no part of the record, and the fact that the contract sued on is set forth in the declaration and does not disclose the beneficial interest of the party for whose benefit the action is brought does not show a variance between the declaration and the contract, and is no grounds for demurrer. Consumers Ice Co. v. Jennings, 100 Va. 719, 42 S.E. 879. See Peter v. Cocke, 1 Wash. (VA) 257. Compare Gordon v. Brown, 3 Hen. & M. 219.
Not Affecting Rights.--Though there may be variances between the declaration and the bond sued on, yet if there be enough in the declaration to enable the court to proceed to judgment according to law and the very right of the case such variances will not be considered. Duval v. Malone, 14 Gratt. 24.
Failure to Set Out Endorsement.--And so, where the declaration, in declaring on a bond, did not mention an endorsement thereon, the court held the endorsement not a part of the bond sued on, and that the variance was immaterial. Carter v. Noland, 86 Va. 568, 10 S.E. 605.
Describing Party under an Alias.--Again, if bond is payable to " Jas. Whitlow, Jr.," and the declaration describe it as payable to plaintiff after naming him as " Jas. Whitlow, Jr., alias Jas. Whitlock," it is not such variance as to prevent its reception as evidence to support the declaration, on the plea of payment. Whitlock v. RamseyMunf. 510.
Effect of Adding " Jr." --And, the addition to a name of " Jr." is no part of it; so, when a judgment is against " B., Jr.," and in a suit against a sheriff for failure to make the money, the judgment is described as against " B.," this is no variance. O'Bannon v. Saunders, 24 Gratt. 138.
Conflict between Declaration and Record.--If the declaration states that the county court appointed three commissioners, naming them, to let out the building of a jail; and the order of the court, offered in evidence, shows only two of them are named, this is not a material variance, and the order will be admitted in evidence. Carroll Co. v. Collier, 22 Gratt. 302.
Time of Endorsement and Delivery.--Declaration on negotiable note states the indorsement and delivery as at the time of the making, and the proof shows the delivery was after the note fell due. This is no variance. Davis v. Miller, 14 Gratt. 1. See Damarin v. Young, 27 W.Va. 436; Bennett v. Giles, 6 Leigh 316.
Demand for Less than Right of Recovery.--If the demand in the declaration in an action of debt be for less than the right of recovery shown by the notes described in it, it would be disregarded on demurrer, as the variance does not aggrieve the defendant, but is to his benefit; and, also, in the absence of a demurrer, it is cured after judgment. Long v. Campbell, 37 W.Va. 665, 17 S.E. 197. See Dabneys v. KnappGratt. 354.
Describing Note as Several,--And, if a declaration describe a note of several parties as several, while the note is joint and several, and no objection is made on account of the variance before judgment, though it be rendered on such demurrer to evidence, it is unavailing to reverse the judgment. Long v. Campbell, 37 W.Va. 665, 17 S.E. 197.
Setting Out Middle Name.--A middle name is generally no part of the name of a person, and, if there be a variance as to the middle name of the payee of a note, between the description of the note in the declaration and the note itself, and such variance would even be deemed material, and it is not taken advantage of in some way before judgment, it will not be ground for reversal of the judgment. Long v. Campbell, 37 W.Va. 665, 17 S.E. 197. See Dabneys v. KnappGratt. 354.
Alleging Consideration, None Existing.--And a declaration on a promise to pay the debt of another alleges a particular consideration, but the written promise of the defendant, adduced in evidence, mentions no consideration. It was held there was no variance. Colgin v. Henley, 6 Leigh 85.
Contract Made Through Agent.--In an action on an open account it is no variance between the allegation and the proof where the declaration avers a contract with the defendant and the proof shows the contract was made through an agent who disclosed the defendant as his principal. R. U. P. Ry. Co. v. N.Y. & S. B. Ry. Co., 95 Va. 386, 28 S.E. 573.
Wrongfully Laying Breach--Cured by Verdict.--On bond with conditions that " defendant would collect certain debts due obligee, pay the amount so collected return an account of collections, surrender all bonds not fully paid, when required," etc., " bring suit on." (the obligor agreeing to perform the duty of collector), and, in all things relative to the business, act for the benefit of the obligee," the declaration lays the breach on " defendant's negligence to bring suit for the recovery of the debts, etc." The variance is not material, especially after verdict. Hawkins v. Berkley, 1 Wash. (VA) 204.
b. In Action on Parol Agreements. --Declaration on parol agreement by defendant to rent plaintiff a piece of ground for use of a jockey club. The plaintiff gave in evidence a written unsealed agreement corresponding with that stated in the declaration, except that in the former the defendant is styled " Treasurer of the Jockey Club." The variance was not material. M'Williams v. Willis, 1 Wash. (VA) 199. See Butcher v. Hixton, 4 Leigh 519. And see Brooks v. ScottMunf. 344, where McWilliams v. Willis is distinguished.
c. In Actions on Implied Agreements.
Conflicting with Record.--Slight variances between the declaration and the record set out therein, which would not prevent the record from being a bar to another action for the same cause are immaterial. Forbes v. Hagman, 75 Va. 168.
And, so, in an action for false imprisonment, the declaration alleges " arrest by virtue of a process issued by W. H. C., a justice," and lays the debt at $ 409.85, whereas, the arrest was made on a capias issued by a clerk of the court, and the record (in evidence) shows the debt to be $ 412.77. The variances are immaterial. Forbes v. Hagman, 75 Va. 168.
And, again, in an action against a sheriff for permitting the escape of a slave the declaration charges the slave's name as " Bill," but the warrant of commitment by virtue of which the sheriff had possession of the slave, described him as " William Lee." The variance was immaterial. Burley v. Griffith, 8 Leigh 442.
d. Avoiding Effect of Variance.
Pleading under Scilicit. --In Taylor v. Bank of Alexandria, 5 Leigh 471, it was held, where the pleading alleged a statute to have been passed by congress in 1811, but the statute, in evidence bore the date, 1810, the variance was immaterial, as it was pleaded under a scilicit.
And, in action for malicious prosecution, it is not material for plaintiff to prove the exact day of his acquittal laid in the declaration, so that it appears to be before the suit was brought; therefore, a variance between the day laid and that stated in the record produced to prove the acquittal is immaterial; the day not being laid as part of the description of such record, and being laid under a scilicit. Mowry v. Miller, 3 Leigh 561. See Arthur v. Crenshaw, 4 Leigh 394; Taylor v. Bank, 5 Leigh 471.
e. Objection.
(1) When Made.--Where, in an action on negotiable note, the declaration alleges the note was endorsed and delivered at the time of making, and the evidence shows it was delivered after it fell due, if there was a variance, it should have been taken advantage of by motion to exclude the evidence. Davis v. Miller, 14 Gratt. 1; Damarin v. Young, 27 W.Va. 436.
And, in an action of covenant, defendant takes oyer of the covenant, and, afterwards pleads covenants performed, he, by oyer, has made the covenant itself a part of the record, and cannot, at trial of the issue, object to the covenant as evidence, because of variance between it and the covenant set forth in the declaration. Armstrong v. Armstrongs, 1 Leigh 491. See Meredith v. Duval, 1 Munf. 76; Thompson v. Boggs, 8 W.Va. 63.
So, too, if, in action of debt on a bond, defendant crave oyer, and then plead " conditions performed," he cannot take advantage of a variance between the declaration and the bond. Meredith v. Duval, 1 Munf. 76. See Armstrong v. Armstrongs, 1 Leigh 491.
And, in debt on a bond payable at a future day, if the declaration describes the penalty as payable on that day, and defendant pleads payment, he cannot object to the variance at the trial of the cause. Browne v. Ross, 4 Call 221.
In Calvert v. Bowdoin, 4 Call 217, it was held, that if the evidence differ from the allegations of the declaration judgment of non-suit will be given by the appellate court, and the cause will not be sent back to the court below with direction to call the plaintiff, or instruct the jury that the evidence does not support the declaration.
(2) How Made.
Objection to Evidence.--A variance between pleadings and proofs should be taken advantage of in the trial court by objection to evidence when it is offered, or by motion to exclude it after it has been received, and proper bills of exception taken to adverse ruling. The objection cannot be made for the first time in the appellate court. Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S.E. 869; Rich. R. & E. Co. v. West, 100 Va. 184, 40 S.E. 643.
Craving Oyer.--To take advantage, by demurrer, of a variance between the declaration and the bond declared on, the defendant must crave oyer of the bond. Sterrett v. Teaford, 4 Gratt. 84. See Duval v. Malone, 14 Gratt. 24; Craghill v. PageHen. & M. 446; Armstrong v. Armstrongs, 1 Leigh 491; Jarrett v. Jarrett, 7 Leigh 93; Thompson v. Boggs, 8 W.Va. 63.
And in an action of covenant, if there be no profert of the deed and the defendant takes oyer, he may, notwithstanding, take advantage of a variance by demurrer. Macon v. Crump, 1 Call 575. See Bennett v. Giles, 6 Leigh 316.
But, if, in action of covenant on a deed executed by four persons, the defendant pleads covenants performed without asking oyer of the deed, and the deed set forth appear to have been executed by only three of the persons, the court will not notice the variance. Watson v. Alexander, 1 Wash. (VA) 340.
f. Amendments in Civil Matters.
(1) General Rule.--In case of variance between allegation and evidence, appearing on trial of an action at law, such amendments of pleadings should be allowed as tend to promote the fair trial of the matter in controversy on which the action was originally really based, provided such amendments do not introduce a new substantive cause of action different from that declared upon, and different from that which the party intended to declare upon when he brought his suit. Kuhn v. Brownfield, 34 W.Va. 252, 12 S.E. 519. See also, Carter v. Grant, 32 Gratt. 769.
(a) In Particular Cases.
On Terms.--The plaintiff may, during the trial, and before verdict, in the discretion of the court, be permitted to amend his declaration, in order to avoid a material variance between its allegations and the proof; but, upon condition, if the defendant so request, that the jury be discharged and case continued, with leave to defendant to amend his pleas, or plead anew to the declaration so amended. Travis v. Peabody Ins. Co., 28 W.Va. 583. See Tabb v. Gregory, 4 Call 225.
In Action for Slander.--And if, in an action for slander, the declaration alleges the slanderous words were uttered in the presence of three named persons, but the proof showed only two were present. The variance was immaterial and the declaration amendable. (Distinguishing Hansbrough v. Stinnett, 25 Gratt. 495.) Harman v. Cundiff, 82 Va. 239. See Alexandria & F. R. R. Co. v. Herndon, 87 Va. 193, 12 S.E. 289.
In Action for Damages.--On trial, in case of variance between the declaration and evidence, the court may, under § 3384 of the Code, allow the former to be amended by striking out immaterial words. Alexandria & F. R. R. Co. v. Herndon, 87 Va. 193, 12 S.E. 289; Harman v. Cundiff, 82 Va. 239.
And in Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S.E. 869, it was held, that, after a trial has been commenced, if it appear there is variance between the evidence and the allegations in the pleadings, under § 3384 of the Code, the pleadings could be amended. See Forbes v. Hagman, 75 Va. 168.
In Action on Judgment.--In an action on a judgment the amount alleged in the declaration and the amount of the judgment varied; but the court properly allowed the declaration to be amended. Anderson v. Dudley, 5 Call 529.
In Action on Insurance Policy.--In an action on an insurance policy, if the declaration omit one of the conditions endorsed upon it, and there is objection for the variance when it is offered in evidence, the court may allow the plaintiff to amend by inserting the omitted condition. N. Y. Life Ins. Co. v. Hendren, 24 Gratt. 536.
g. In Criminal Matters.
(1) Material Variances, between Indictment and Proof.
For Perjury.--An indictment for perjury sets out that " a warrant for debt due by account for rent" was sued out by defendant, but the warrant, given in evidence, shows the claim was not for rent. This was a material variance, and the warrant improper evidence. Com. v. HickmanVa. Cas. 323.
For Forgery.--And on an indictment charging accused with forging the name of " Bowling" Starke, the proof showed the proper name to be " Bolling" Starke, and this was held to be a material variance. Com. v. Kearns, 1 Va. Cas. 109.
For Selling Liquor to Minors.--On an indictment under the statute for selling liquor to minors without the consent of their parents or guardian, the indictment is for selling to minors whose names are unknown to the grand jury. If it appears from the evidence that in fact the name of the minor, to whom the liquor was sold, was known to the grand jury, the evidence does not sustain the indictment. Morgenstern v. Com., 27 Gratt. 1018. Distinguishing Hulstead v. Com., 5 Leigh 724.
Gaming.--And on indictment for gaming at the booth of S., the defendant was improperly convicted where the proof showed the gaming was done at the booth of C., S. having no right, interest or agency in the booth. Com. v. ButtsVa. Cas. 18. See Pomeroy v. Com.Va. Cas. 342, where the above case is distinguished.
So, in Windsor v. Com., 4 Leigh 680, it was held, that, where the indictment alleged that the defendant played at " cards, at the game of all fours, loo and whist," the games alleged to have been played became essential ingredients in the offence itself, and should have been proved as alleged.
For Beating Slave.--If B is charged with beating the slave of F, no conviction can be had if it is shown that B, at the time, had the ownership of the slave. Com. v. BoothVa. Cas. 394. See Com. v. Williams, 1 Va. Cas. 14.
Cutting Timber.--And proof of cutting one black oak tree will not sustain an indictment for cutting ten white oak trees. Com. v. Butcher, 4 Gratt. 544.
Charging as Principal, Convicting as Accessory.--Nor can an indictment charging accused as principal to a felony be sustained by proof that he was accessory before the fact. Thornton v. Com., 24 Gratt. 657; State v. Roberts, 50 W.Va. 422, 40 S.E. 484.
For Taking and Carrying Away.--And, where indictment charges the taking and carrying away of property it cannot be sustained by proof that it was obtained by false pretenses, without force or threats, and with the owner's consent. State v. Porter, 25 W.Va. 685.
(2) Immaterial Variances, between Indictment and Proof.
For Forgery--An indictment charges the forgery of a negotiable note, and sets out the note in haec verba, omitting the endorsements on the back of it. At trial, when note was offered in evidence it was objected to for variance. It was held that it was not necessary to set out in the indictment the endorsement on the note, or any other writing thereon which constituted no part of the note itself, and not entering into the essential description of the paper. Perkins v. Com., 7 Gratt. 651. See also, Burress v. Com., 27 Gratt. 934; State v. Poindexter, 23 W.Va. 805.
And where the indictment for forging an endorsement charged the name of the accused as " J. F. C. Duffield," whereas, the forged instrument, produced in evidence showed the name to be " J. F. C. Dufield." The variance was held immaterial. State v. Duffield, 49 W.Va. 274, 38 S.E. 577.
So, too, it was held to be no variance in Huffman v. Com., 6 685, where the indictment charged accused with having forged the paper as of date 1827, setting out its tenor, and the proof was, it bore date 1828, when passed, at which time accused changed the date to 1827.
And it was held, where an indictment for uttering a forged receipt described it as dated " this 24th Dec. 1869, while the one produced as evidence recited the date as " this 24th of Dec. 1869," there was no material variance. State v. Henderson, 29 W.Va. 147, 1 S.E. 225. See Burress v. Com., 27 Gratt. 934; Perkins v. Com., 7 Gratt. 651; State v. Poindexter, 23 W.Va. 805.
For Sale of Ardent Spirits.--Where an indictment charged the sale of ardent spirits without license " to persons to the jurors unknown," proof that such persons were known to the jury when it found the indictment does not constitute a material variance. Hulstead v. Com., 5 Leigh 724. But see Morgenstern v. Com., 27 Gratt. 1018 , where the above case is distinguished.
So, too, on an indictment for retailing ardent spirits, specifying the precise quantity and the kind, to be drunk where sold, without license, proof of retailing any quantity of any kind to be drunk where sold, does not constitute material variance. Brock v. Com., 6 Leigh 634.
And in State v. Berkeley, 41 W.Va. 455, 23 S.E. 608, it was held, that there was no variance where a prescription is described in the indictment stating that the liquor was absolutely necessary as a medicine, when the prescription stated the physician believed it to be necessary.
Gaming.--An indictment for playing at cards at a public place may be sustained by proof that the party bet at faro at the time and place stated in the indictment. Gibboney v. Com., 14 Gratt. 582.
And, in indictment against a tavern keeper for allowing look to be played in his tavern by certain people, named, will be supported by evidence of his having allowed the game played therein, though by other persons than those named in the indictment. Com. v. Price, 8 Leigh 757.
Advising Slaves to Escape.--An indictment for advising the slaves of E. L. to escape will be sustained by proof that they were the slaves of an estate of which E. L. was executrix. Cole v. Com., 5 Gratt. 696.
For Stealing.--And an indictment charged accused with stealing the goods of R. B. The proof showed the owner of the goods was J. R. B. The variance was immaterial in the absence of evidence that the owner of the goods was some other person than the one named in the indictment. State v. Reece, 27 W.Va. 375.
For Murder.--An indictment for murder alleged the wound to have been made on the right side of defendant's head, while the proof showed it on the left side. This was held to be no variance. Curtis v. Com., 87 Va. 589, 13 S.E. 73.
And where the indictment alleges the injury and death to have occurred on certain named days, and the proof showed they occurred prior to the dates alleged, it was held an immaterial variance. Livingston v. Com., 14 Gratt. 592. See Com. v. Ailstock, 3 Gratt. 650.
h. Objection. --If there be variance between the information and indictment for a misdemeanor defendant may take advantage of it, after verdict by showing it as cause against the filing of the information or by motion to quash. Com. v. JonesGratt. 555.
C. IN SUITS IN EQUITY.
1. General Rule. --The rule in equity practice is, that, the allegations and proofs in a cause must correspond. Zane v. Zane, 6 Munf. 406; Campbell v. Bowles, 30 Gratt. 652; Pigg v. Corder, 12 Leigh 69; Doonan v. Glynn, 26 W.Va. 225; McComas v. Easley, 21 Gratt. 23; Lamb v. Cecil, 25 W.Va. 288; Floyd v. Jones, 19 W.Va. 359; Baugher v. Eichelberger, 11 W.Va. 217; Wren v. Moncure, 95 Va. 369, 28 S.E. 588.
So that, a plaintiff in equity cannot obtain relief by alleging one ground or state of facts on which he claims the relief in his bill, and, by his proofs, establishing a different ground or state of facts entitling him to relief. The allegata and the probata must correspond in all material respects. Doonan v. Glynn, 26 W.Va. 225; McComas v. Easley, 21 Gratt. 23; Baugher v. Eichelberger, 11 W.Va. 217; Lamb v. Cecil, 25 W.Va. 288; Floyd v. Jones, 19 W.Va. 359.
The evidence applying to a matter not in issue will not be regarded, and, by consequence, a party will not be heard to allege one thing and prove another. Smith v. Nicholas, 8 Leigh 330. See Wren v. Moncure, 95 Va. 369. 28 S.E. 588; Hunter v. Jett, 4 104; Brown v. Toell, 5 543; Welfley v. Shen. I., L., M. & M. Co., 83 Va. 768, 3 S.E. 376.
And, in Floyd v. Jones, 19 W.Va. 359, it is said, that, " although the complainant makes out in evidence a good case, yet, if it be not the case made by the bill it will not support it. " A party cannot be allowed to recover upon a case proved essentially different from that alleged in the bill." See Anthony v. Leftwich, 3 238; Jackson v. Cutright, 5 Munf. 308.
To enable a court of equity to enforce a contract for the sale of real estate, not only must the contract be clear, definite and unequivocal, but it must be proved as charged in the bill. Patrick v. Horton, 3 W.Va. 23. See Pigg v. Corder, 12 Leigh 69; Baldenberg v. Warden, 14 W.Va. 397; Anthony v. Leftwich, 3 238; Westfall v. Cottrills, 24 W.Va. 763; Haskin v. Ag. Fire Ins. Co., 78 Va. 700; Beal v. City of Roanoke, 90 Va. 77, 17 S.E. 738; Langford v. Taylor, 99 Va. 577, 39 S.E. 223.
And in a suit for specific execution of an agreement, the agreement alleged in the bill must be proved by the evidence, and specific execution can only be decreed of same agreement so alleged and proved; and it is error to direct specific execution of a different contract. Pigg v. Corder, 12 Leigh 69. See Patrick v. Horton, 3 W.Va. 23; Anthony v. Leftwich, 3 238; Baldenberg v. Warden, 14 W.Va. 397; Edichal Bullion Co. v. Col. Gold Min. Co., 87 Va. 641, 13 S.E. 100; Rockecharlie v. RockecharlieVa. Dec. 582; McComas v. Easley, 21 Gratt. 23.
Nor can fraudulent representations or concealments not relied on in the pleadings be set up in evidence. Wren v. Moncure, 95 Va. 369, 28 S.E. 588. See Thompson v. Jackson, 3 504; Jackson v. Cutright, 5 Munf. 308; Welfley v. Shen. I. L. M. & M. Co., 83 Va. 768, 3 S.E. 376.
2. Rule Qualified. --But in Zane v. Zane, 6 Munf. 406, it is said, that, " although the rule is, that the allegata and probata ought to correspond, yet a court of equity should always incline to get over form, in favor of substance, where the case in proof is clearly such as would, if properly set forth in the bill, entitle the plaintiff to a decree; especially, if the defendants do not attempt to disprove the agreement alleged, or to prove one different, but say, in their answer that they are willing to yield to the proof of any agreement that the plaintiff can establish. See also, Campbell v. Bowles, 30 Gratt. 652; Baugher v. Eichelberger, 11 W.Va. 217.
And, though it is true that the case stated in a bill in equity must be sustained by the evidence, the rule does not forbid relief where the case proved does not materially vary from the case stated, as, where two deeds are charged to be without consideration, and intended to delay and hinder plaintiff, and the proof is, that the second being a deed to a trustee, for the separate use of the debtor's wife, was without valuable consideration. Campbell v. Bowles, 30 Gratt. 652.
And, in suits for freedom, a variance between the evidence and the cases stated by the plaintiff will not be regarded, but the decision will be according to the rights of the parties and the case made out by the evidence at the trial. Hudgins v. Wrights, 1 Hen. & M. 134.
a. Decree Must Conform to Allegations. --The decree must conform to the allegations of the bill, And where bill sets out trust deed which stipulates that it shall be enforceable only after six months subsequent to demand made on default of payment, there can be no decree to enforce trust deed, though more than six months have elapsed after default and institution of suit, before decree was entered, the suit not being considered the demand stipulated for. Potomac Manf. Co. v. Evans, 84 Va. 717, 6 S.E. 2. See Welfley v. Shen. I. L., M. & M. Co., 83 Va. 768, 3 S.E. 376.
3. Amendment. --Although the allegations and proof do not correspond, if the proofs show the plaintiff has a cause which entitles him to relief that is of a similar nature to that alleged in his bill, and such as might be made available by amendment, such amendment will be allowed on the hearing. Doonan v. Glynn, 26 W.Va. 225; Lamb v. Cecil, 25 W.Va. 288; Zane v. Zane, 6 Munf. 406.
III. BETWEEN DECLARATION AND VERDICT.
Where the declaration describes the land in controversy as lying north of a road, and the verdict, as south of that road, all particulars of the description being the same, there is no material variance. Benn v. Hatcher, 81 Va. 25. See Koiner v. Rankin, 11 Gratt. 420.
[*]For monographic note on Variance, see end of case.
[*]Judge Cabell, absent.