Swanton v. Lynch , 58 Me. 294 ( 1870 )

Walton, J.

At the trial of this action the plaintiff introduced such evidence as he thought proper, and then stopped. Thereupon the defendant moved for a nonsuit upon the ground that the evidence did not support the declaration. The motion was overruled. The defendant then consented to be defaulted upon this condition, that the case should be reported to the full court, and the default be taken off, and the action stand for trial, if in the opinion of the full court the plaintiff had not made out his case. The question, therefore, is whether the plaintiff’s evidence corresponds with and supports his declaration.

We think it does not. On reading the plaintiff’s declaration, it will be observed that he sets out an unconditional promise on the part of the defendant to pay him the sum of six thousand dollars, with interest, while the written agreement of the defendant, read in evidence in support of this alleged promise, is not unconditional, but contains this important qualification, namely, that the plaintiff should allow as part-payment the notes held by the defendant against A. Jackson, and indorsed by W. D. Crooker, discounting fifty per cent from said notes. In other words, the plaintiff was to accept in part-payment of the sum named the Jackson notes at fifty cents on a dollar.

We thus see that there was an important and fatal variance between the averments and the proof. The plaintiff a vers an unconditional promise to pay six thousand dollars in money; the proof is a promise to pay partly in money and partly in notes, the notes to be accepted at fifty cents on a dollar.

It is clear, thereforé, that the plaintiff’s evidence did not correspond with nor support his declaration; and, as agreed by the parties, the default must be taken off, and the action stand for trial.

Default talcen off.,

Action to stand for trial.

Appreton, C. J.; Cutting, Kent, Dickerson, and Daneorth, JJ., concurred.