the second place, the difference, while it does not extend to the entire cause of action or defence, may be so great in respect to some of its particular material facts as to have misled the adverse party, so that his preparation in connection with that particular is not adapted to the proofs which are produced. In such circumstances an amendment is proper because the variance is partial, but it is obviously equitable that terms should be imposed. Finally, if the divergence is total, that is, if it extends to such an important fact, or group of facts, that the cause of action or defence as proved would be another than that set up in the pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defence is the only equitable result. It should be noticed that, in order to constitute this total failure of proof, it is not necessary for the discrepancy to include and affect each one of the averments. A cause of action as stated on the pleadings might consist, say, of five distinct issuable or material facts; on the trial four of these might be proved as laid, while one so entirely different might be substituted in place of the fifth that the cause of action would be wholly changed in its essential nature. rial. § 449. *555. Instances where Variance has been held ImmateThe conclusions reached in the foregoing analysis, and the reasons which support them, are fully sustained by the decided cases which constantly discriminate between the immaterial variance which is disregarded, and the total failure of proof which is fatal to the cause of action or defence. It is of course impossible to give any comprehensive formula which shall determine these two conditions; the scope and operation of the doctrine can only be learned from the decisions which have applied it, of which a few are selected as illustrations. In the following instances the variance was held to be immaterial: In an action upon a written contract which was properly set out in the complaint except that one material stipulation was omitted, but a correct copy of it had been served upon the defendant's attorney;2 in an action against a city for injuries done to the plaintiff's house and grounds by the unlawful construction of sewers, side N. W. 863; Wilcox Lumber Co. v. Ritteman (1902), 88 Minn. 18, 92 N. W. 472. Where a variance is immaterial the court will either disregard it altogether or order an immediate amendment without costs: Wilcox Lumber Co. v. Ritteman (1902), 88 1 [See Dudley v. Duval (1902), 29 Wash. 528, 70 Pac. 68.] 2 Fisk v. Tank, 12 Wis. 276, 301. walks, etc., it was held that, if the manner of constructing the works was unlawful, the failure to allege negligence in the complaint was not material, and might be either disregarded or amended at any stage of the proceeding;1 in an action upon a warranty given in a sale of horses, where the complaint stated in general terms that the defendant warranted them to be sound, while the proof was that he warranted them to be sound as far as he knew; that they were unsound, and that he knew them to be so, the court saying that an amendment if necessary should be made at any time even by the appellate court; in an action upon a warranty of quality, where the complaint set forth an express warranty, and on the trial facts were proved from which a warranty would be implied; in an action against two defendants to recover damages for injuries done to the plaintiff's sheep by the defendants' dogs, the petition alleging that "a certain pack or lot of dogs owned by the defendants worried, etc., certain sheep of the plaintiff," while the proof showed that one of the defendants owned a portion of the dogs, and the other defendant the remainder, but there was no joint ownership; in an action by a husband and wife against a husband and wife for an assault and battery by the female defendant upon the female plaintiff, the petition alleging that the plaintiff Mary D. is the wife of the plaintiff, James D., and the defendant, Martha H., is wife of the defendant, Aaron H., and proof was admitted that the parties were respectively man and wife at the time of the affray;5 in an equitable action brought to set aside a conveyance of land made to the defendant, on the ground of his alleged fraud, and the plaintiff failed to make out a case of fraud, but did prove one of mutual mistake; in an action for work and labor stated in the complaint to have been done for an agreed compensation, but at the trial the plaintiff proved the value as upon a quantum meruit. The Supreme Court of North Carolina has gone so far as to hold in one case where the complaint set up a cause of action for the conversion of chattels, and the proof at the trial showed only a liability upon an implied promise for money had and received, that the plaintiff could recover, since all distinction between forms of action had been abolished, and amendments were freely allowed. This decision, as will be seen, stands opposed to the whole current of authority in other States. The objection that the proof varies from the allegation must be taken at the trial; if omitted, then it cannot be afterwards raised on appeal.2 The reason is obvious; when made 1 Oates v. Kendall, 67 N. C. 241. But see Parsley v. Nicholson, 65 N. C 207, 210, which maintains the general doctrine. 2 Speer v. Bishop, 24 Ohio St. 598. See, also, as further examples of immaterial variance, Chamballe v. McKenzie, 31 Ark. 155; Bruguier v. U. S., 1 Dak. 15; McMahan v. Miller, 82 N. C. 317; Gaines v. Union Ins. Co., 28 Ohio St. 418; Sibila v. Bahney, 34 Ohio St. 399; Dodd v. Denney, 6 Ore. 156; Miller v. Hendig, 55 Iowa, 174; Peck v. N. Y. & N. J. Ry. Co., 85 N. Y. 246; Durnford v. Weaver, 84 id. 445; Thomas v. Nelson, 69 id. 118; Lifler v. Sherwood, 21 Hun, 573; Clayes v. Hooker, 4 id. 231; Cody v. Bemis, 40 Wis. 666; Flanders v. Cottrell, 36 id. 564; Giffert v. West, 37 id. 115; Chunot v. Larson, 43 id. 556; Russell v. Loomis, 43 id. 545; Aschermann v. Brewing Co., 45 Wis. 262; Union Nat. Bk. v. Roberts, 45 id. 373; Delaplaine v. Turnley, 44 id. 31; Ryan v. Springfield F. & M. Ins. Co., 46 id. 671; Willer v. Bergenthal, 50 id. 474; Galloway v. Stewart, 49 Ind. 156; Glasgow v. Hobbs, 52 id. 239, 242; Wright v. Johnson, 50 id. 454; Stroup". State, 70 id. 495; Hunting ton v. Mendenhall, 73 id. 460; Thigpen v. Staton, 104 N. C. 40; Merkle v. Bennington, 68 Mich. 133; Thalheimer v. Crow, 13 Colo. 397. [Gillies v. Improvement Co. (1895), 147 N. Y. 420, 42 N. E. 196; Brady v. Nally (1896), 151 N. Y. 258, 45 N. E. 547; Ashe v. Beasley (1896), 6 N. D. 191, 69 N. W. 188; Etna Iron Works v. Firmenich Mfg. Co. (1894), 90 Ia. 390, 57 N. W. 904; Dean v. Goddard (1893), 55 Minn. 290, 56 N. W. 1060; Adams v. Castle (1896), 64 Minn. 505, 67 N. W. 637; Lindsay v. Pettigrew (1894), 5 S. D. 500, 59 N. W. 726; Chouquette v. Southern Elec. R. R. Co. (1899), 152 Mo. 257, 53 S. W. 897. The party whose proof varies from his allegations cannot complain: Williams v. Williams (1899), 102 Wis. 246, 78 N. W. 419. In Schirmer v. Drexler (1901), 134 Cal. 134, 66 Pac. 180, the court said: "The findings and decree seem to be entirely outside of the case made by the pleadings. The said findings and decree contradict the material allegations of plaintiff's complaint, and there seem to be no allegations at all in the complaint to which the findings and decree can be held to be material or pertinent. The whole theory of the complaint is, that the plaintiff's rights are those of an owner, acquired by adverse use of the ditch and the water. The findings and decree proceed upon an entirely different theory, and expressly state that the use of the water and of the ditch by the plaintiff and his predecessor in interest therein was had with the consent of the owners thereof and under an oral license or agreement therefor. The decree attempts to enforce the specific performance of a contract which is not only not set up in the complaint, but to which no reference is made anywhere in the pleadings. We know that there are cases which hold, as contended by respondent, that where a question is treated by both parties as an issue in the case, and evidence is taken thereon without objection, the appellant will not thereafter be heard to say that the question was not in issue. That is a salutary general rule, and we do not wish to overturn it. But at the trial, there is an opportunity for removing it at once by amendment.1 in none of those cases, that we have been able to find, were the findings and decree clear outside of the case as made by the pleadings, but in each and all of them the findings, taken altogether, have some relation to the issues as framed; but here the issues as made by the pleadings sustain no degree of kinship whatever to the findings and decree, and are, besides, in direct conflict with the allegations of the complaint. It would be going too far to hold that such a variance as this should be deemed to be waived by failure to object to evidence at the trial. If the burden was on the plaintiff to establish the case made by his complaint, why should the defendants object to evidence, as long as it went to show that the case as thus made did not exist? If this kind of a judgment can be upheld on this kind of a record, then written pleadings are no longer necessary, and may well be dispensed with altogether." Cases cited.] 1 [In the following cases the variance was held immaterial: In an action against a national bank on its double liability as a stockholder in another corporation, an allegation that it acquired the stock in a particular manner and proof that it acquired it in another manner not ultra vires: Bank v. Bank (1902), 64 Kan. 134, 67 Pac. 458; error in the description of the name of the obligee in a bond: PostIntelligencer Co. v. Harris (1895), 11 Wash 500, 39 Pac. 965; a mistake in the description of a house upon which a lien is sought to be foreclosed, when the mistake is so slight that the house is still capable of identification: Griffith v. Maxwell (1898), 20 Wash. 403, 55 Pac. 571; error in the details of personal injuries suffered by an insured by reason of a fall: Mercier v. Travelers' Ins. Co. (1901), 24 Wash. 147, 64 Pac. 158; an allegation that defendant signed a note as principal, and evidence that he signed as surety: Hermiston v. Green (1898), 11 S. D. 81, 75 N. W. 819; an allegation that defendant and another were partners until the other's death in 1893, and proof that the partnership was dissolved by consent in 1885, without the knowledge of the plaintiff; an allegation that defendant executed a separate promissory note, and proof that it was a joint and several note of defendant and another: Nichols & Shepard Co. v. Dedrick (1895), 61 Minn. 513, 63 N. W. 1110. In the following cases it was held that there was no variance between the pleadings and proof: an allegation of a money indebtedness for services rendered, and proof of an agreement to pay in specific articles of property: New York News Publishing Co. v. Steamship Co. (1895), 148 N. Y. 39, 42 N. E. 514; an allegation that promissory notes were signed by defendant as maker, and proof that they were signed by defendant and others under a several liability: Hinchman v. Point Defiance Ry. Co. (1896), 14 Wash. 349, 44 Pac. 152; an allegation that the place of injury was a sidewalk, and proof that it was a crosswalk: Piper v. City of Spokane (1900), 22 Wash. 147, 60 Pac. 138; an allegation, in an action for trespass, of ownership of property in fee, and proof of an equitable interest only: Olson v. City of Seattle (1903), 30 Wash. 687, 71 Pac. 201; an allegation that plaintiff stumbled over the nails projecting from a walk, and proof that she caught her foot between two planks: Bell v. City of Spokane (1902), 30 Wash. 508, 71 Pac. 31; proof of interest upon a balance of an account, where there is no allegation of interest due in the complaint: North Star Boot Co. v. Stebbins (1893), 3 S. D. 540, 54 N. W. 593; an allegation of slanderous words, and proof of the use of words only substantially the same: Emerson v. Miller (1902), 115 Ia. 315, 88 N. W. 803; an allegation of defendant's liability as a common carrier, and proof of liability as a warehouseman: Cavallaro v. Texas, etc. Ry. Co. (1895), 110 Cal. 348, 42 Pac. 918 (see contra, Normile v. Oregon, etc. Co. (1902), 41 Ore. 177, 69 Pac. 928); an allegation that plaintiff, in an action for fraud, was mentally weak and incompetent, and proof that she was weak-minded and far below the average in intellect: Hayes v. Candee (1902), 75 Conn. 131, 52 Atl. 826.] § 450. *556. Instances of Complete Failure of Proof. The following are examples of a complete failure of proof. In all these cases one cause of action was alleged by the plaintiff, and another one was proved or attempted to be proved at the trial, but was rejected by the court. The New York Court of Appeals, while passing upon the admissibility of evidence which made out a liability under implied contract, in order to sustain a complaint that charged a fraudulent transaction and sought to recover the money obtained by means of such fraud, used the following language in a recent case: "It is insisted that, under the code, forms of action are abolished, and that the facts showing the right of action need only be stated. This is correct, but it does not aid the plaintiff. The plaintiff had a cause of action against the defendant upon an account for moneys advanced for him. Instead of stating this cause of action, the allegation is in substance that he paid him money as the price of stocks fraudulently sold by defendant to plaintiff, which contract has been rescinded by the plaintiff, and a return of the money demanded, which has been refused by the defendant. These causes of action differ in substance. The former is upon contract, the latter in tort; and the law will not permit a recovery upon the latter by showing a right to recover upon the former. " 1 It is the settled rule under the codes, contrary to that prevailing in the common-law system, that when a cause of action depends upon the performance of some act, but under certain circumstances the performance may 1 Degraw v. Elmore, 50 N. Y. 1. The following cases give further examples of a material or fatal variance, or a failure of proof: Bishop v. Griffeth, 4 Colo. 68; Proctor v. Rief, 52 Iowa, 592; Burns v. Iowa Homestead Co., 48 id. 279; York v. Wallace, 48 id. 305; Fauble v. Davis, 48 id. 462; McKoon v. Ferguson, 47 id. 636; Arnold v. Angell, 62 N. Y. 508 (partnership); Harris v. Kasson, 79 id. 381; Stowell v. Eldred, 39 Wis. 614; Cowles v. Warner, 22 Minn. 449; Cummings v. Long, 25 id. 337; Vrooman v. Jackson, 6 Hun, 326 (ejectment); Southwick v. First Nat. Bk. of Memphis, 84 N. Y. 420; Gaston v. Owen, 43 Wis. 103; Streeter v. Chicago, etc. Ry. Co., 44 id. 383; Jeffersonville, M. & I. R. Co. v. Worland, 50 Ind. 339 (complaint sets forth special contract for transportation of goods; cannot recover on breach of implied contract or of common carrier's legal duty to transport in a reasonable time); Hinkle v. San Francisco & N. P. R. Co., 55 Cal. 627 ; and cases cited ante, under § *553. See also Ehrlich v. Ætna L. Ins. Co., 103 Mo. 231 (allegation of performance does not lay foundation for evidence excusing nonperformance); Daley v. Russ, 86 Cal. 114 (same); Reed v. McConnell, 133 N. Y. 425; Clark ». Sherman (Wash. 1893), 32 Pac. 771 (complaint being for money had and received, plaintiff cannot recover on an express contract); Distler v. Dabney, 3 Wash. 200 (same); Wernli v. Collins (Iowa, 1893), 54 N. W. 365 (complaint being on an express contract, plaintiff cannot recover on a quantum meruit); Woolsey v. Ellenville V. Trs. (Supreme, 1893), 23 N. Y. Suppl. 411. |