Mattoax Leather Co. v. Patzowsky , 25 Del. 327 ( 1911 )

Boyce, J.

At the time the plaintiff sought to introduce this evidence, we had considerable doubt about its admissibility, but we concluded to hear it. We now have no doubt that the plaintiff has not shown sufficient authority, and we order that the testimony of this witness as to his authority to sell and sue be stricken put.

The plaintiff closed his testimony and counsel for defendants moved for a nonsuit on two grounds, viz.:

First. ' That there was a variance between the allegations in the declaration and the proof adduced, in that the declaration alleged in substance and theory that the defendants were indebted to the plaintiff for a certain machine which the plaintiff claimed to have owned and sold to the defendants and claimed to be entitied to receive the value thereof from the defendants — either a specific value or a value on quantum meruit, whereas the testimony had shown that the one entitled to recover the value of the machine was an entirely different person and that the plaintiff in this suit had no interest in the result of the suit and was entitled to no part of the money, and that therefore no right of action and no cause of action exists between the plaintiff and the defendants; which is a substantial variance between the averments in the narr. and the proof.

Second. The narr. filed contained simply the common counts, which are predicated upon the existence merely of an implied contract between the parties, and the proof shows clearly that there was an express contract in writing between the parties. That would also constitute a fatal variance, and the plaintiff cannot recover.

Boyce, J.

It seems to the court that the nonsuit should be granted. And we do grant the nonsuit.