Sears v. Barnum , 1 Cl. Ch. 139 ( 1839 )

The Vice Chancellor.

At common law there is, perhaps, an unreasonable strictness of proof exacted, even to the very letter of the averments, in the pleadings; and, consequently, the Common Law Reports abound in cases relating to the variance between the pleadings and proofs. Courts of Equity, however, are much more liberal in this respect, and have usually shewn indulgence in cases of inaccuracy, whether caused by mistake or by deficiency of information. They disregard mere technical rules, when it is evident the parties are not misled by the averments in the pleadings, and search after justice by the light of testimony, if the statements in the pleadings will reasonably warrant the introduction of such testimony. Hence, when the averments in a pleading are scanty, great liberality is allowed in producing proofs; and much wider scope is given in such cases, than in courts of law. Still, even in equity, if a party undertakes to set forth a contract or an agreement in a pleading, he must prove it substantially as averred. There is at least reason why he should set forth a contract in his own possession and within his own knowledge, according to its legal importj and, above all, he would hardly be excused he set forth a contract containing more than the contract proved would justify. In bills for specific performance of an agreement, the contract or agreement must be proved as stated in the bill; and even when an immaterial or rather unnecessary averment made in the bill, it is held it must be proved as averred, or the party will fail. (As to variance, see Gresley’s Equity Evidence, pages 161, 170, 171, 172, andjcases there cited.) . These averments, immaterial to be made, but necessary to be proved if made, in all the cases, I find relate to some substantive andjindependent matter. In the case before us, from carelessness in ’adapting the printed form used, the mortgage upon which the bill was. framed, there is a superfluity or excess of statement in the bill, as to the scope, provisions, and extent of the mortgage. Still, the mortgage produced is in legal operation and effect, the same as the mortgage set forth in the bill. There is a redundancy of language in the mortgage, as described in the bill; but the mortgage produced, though shorter and 'more brief in its composition, has the same legal scope and effect as the one set forth in the bill. It has the same parties, the same date, conveys the same premises, upon the same conditions. The passages in the bill marked with double commas, may be stricken out entirely, and it will leave the statement of a perfect and complete mortgage, and the same mortgage as is produced in evidence. I think it is too technical to say that the complainant’s bill should be dismissed for the variance insisted upon by the defendant’s counsel, as it is hardly possible that the defendant could have been misled by the averments in the bill. I shall therefore hold that the mortgag’e produced before the examiner, was admissible proof under this bill, and declare it duly proved; and the complainant must have the ordinary order of reference to a Master to compute the amount due on his mortgage.

The redundant verbiage of the bill may be hereafter considered in the costs.