Toole v. Urquhart , 44 Ala. 646 ( 1870 )

B. F. SAFFOLD, J.

The complaint is in the terms of the form prescribed by the Revised Code on a dependen Covenant or agreement. The demurrer was, therefore, properly overruled. The third ground of objection, that the property referred to is insufficiently described, cari not prevail, because a precise identification of the property is not a material inquiry in the case, unless made so by piea.

Note by Reporter. — Afterwards, appellant, by Rice, Semple & Goldthwaite, applied for a rehearing, and filed in support thereof the following argument: It is a universal rule that under a count upon a special contract, the plaintiff can not recover without proving, in substance, the very contract described in the count. It is also a fixed rule, that a plaintiff may defeat a recovery by Mm, by unnecessary particularity in describing the cause of action in his count. The law holds him sternly to the proof of matter of description, although the description was unnecessarily particular— Dill v. Rather, 30 Ala. 57; especially in the paragraph next before the last of the opinion in that case, and see cases there cited. This rule holds good in equity as well as in law . — McKinley v. Irvine, 18 Ala.

The charge given at the request of the plaintiff Was correct. Whether the information given by the plaintiff to the Confederate quartermaster ought, under other circumstances, to affect his right to recover, it was made known to the defendant before his agreement with the plaintiff. Both acted with a full knowledge of the Consequences to be apprehended on that account.

All of the charges asked by the defendant were properly refused. The proposition of the defendant to bring the horse to the place of arbitration, that he might deliver him, if required to do so, and its declination by the plaintiff before the decision of the arbitrators, was not a delivery. It might have been so construed by the jury if made after-wards.

The testimony of the plaintiff, that the award required the defendant to deliver the horse, can not be considered as a failure to prove that he was not to deliver the other articles claimed, when taken in connection with the testimony of both parties that the plaintiff lost them, and they came into the possession of the defendant, with the horse, and were demanded of him by the plaintiff, without objection on his part. Even if this were not so, as the verdict was not obliged to be for the value of all the property claimed or none, we can not presume that it was not erroneously for all, when the defendant failed to take advantage of any defect of proof,- by asking specific charges.

The judgment is affirmed.

Appellant contends, that under a count upon a special contract, the plaintiff can not recover, if the proof only shows a contract materially different in any respect whatever from tho contract as described in the count. Here the variance is perfectly plain. The count describes the contract as one embracing four articles, to-wit, a horse, a bridle, a sheep-skin, a saddle. The contract, as proved by each witness, was one which did not embrace thefou/r articles named, but only one of them, to-wit, the horse. There can not be, in legal contemplation, a clearer case of variance between the contract as described, and the contract as proved by both witnesses. The charges asked by the defendant are all founded on the well settled law of variance between the allégala and probata, and if Ohitty and all the other authorities are right, these charges ought to have been given. Chitty states the general rule as follows : “The contract must be stated correctly, and if the evidence differ from the statement, the whole foundation of the action fails.”— 1 Chitty’s PL 305, et seq.; Moseley v. Wilkinson, 18 Ala. 288; Jordan v. Roney, 23 Ala. 758; Smith v. Causey, 38 Ala. 665; Greenleaf on Ev. p. 74, § 63, 12 ed. The legal proposition, thus stated by Chitty, is precisely the proposition which, in substance, is announced and applied in the charges asked. The plaintiff was at liberty to sue for all the articles, or for a portion only. But if he elected to proceed for all, and to state the contract (that is the submission to arbitratration) as embracing all of these, he can not recover under such statement, any one of them, when the proof of each witness showed that the contract embraced only the horse. There was never any submission as to the other articles ; and in suing on the submission and award, the plaintiff was bound to state the same “correctly.” This he did not do ; and by the charges asked the defendant took advantage of the incorrect statement. The law allows this to the defendant ; and it is done properly. SAFFOLD, J. — The application for a rehearing is based on the allegation that a verbal contract, by which the appellant, on certain conditions, was to deliver up to the appellee, a horse, bridle, saddle, and sheep-skin, is not sustained by proof of an award that a horse only was to be delivered. The doctrine of variance is that the allegations and proof must not be different and contradictory. In this case, the evidence of the appellant as much confirms the allegations of the complaint as that of the appellee. Immediately after the award was made, the plaintiff demanded of the defendant all of the articles claimed in this suit. The latter admits the demand, and testifies that he had them. They were rather incidental to the horse, and, from all the evidence, we can not say the jury was not authorized to find that they were understood to be included in the award. We still do not think the evidence justified the first two charges asked by the defendant. The last two rested the case, first, on the plaintiff’s testimony alone, and next, on the defendant’s alone. We think, whether either one separately made out the case or not for the plaintiff, both h> gether did. The rehearing is denied.