be excused and the cause of action still remain in force, the facts showing the excuse must be alleged if the plaintiff intends to rely upon it, and not upon the performance. The plaintiff is no longer permitted to aver the performance of the required act, and on the trial prove the circumstances which excuse such performance, or prove any other alternative than the one specially alleged.1 Thus where, in an action against indorsers, the complaint stated a demand at maturity, and notice thereof to the defendants, and on the trial the plaintiff offered to prove facts which would excuse any demand, the evidence was held inadmissible, and the action was dismissed; 2 and in a similar case under a statute which required that, in order to make an indorser liable, due diligence must be used by the institution of a suit against the maker, or else that such a suit would be unavailing, the petition alleged that due diligence had been used by commencing a suit against the maker, in which judgment had been recovered, and an execution had been issued and returned unsatisfied; and it was held that the other alternative, the maker's insolvency, and the consequent unavailing character of a suit against him, could not be shown on the trial; and in a similar action against the drawer of a bill or the indorser of a bill or note, when the petition avers the demand and notice in order to charge the defendant, a waiver of these steps cannot be proved, --for example, a subsequent promise by the defendant to pay the note when the steps necessary to charge him had been omitted.1 § 451. *557. Examples of Fatal Disagreement between Cause of Action Pleaded and Proved. The following are miscellaneous instances of a fatal disagreement between the cause of action pleaded and that proved on the trial. In an action to recover damages for trespass to lands, the complaint alleging that the plaintiffs were possessed of the premises; on the trial, however, it appeared that they were remainder-men not yet entitled to the possession, while the defendants were rightfully in possession, but had committed acts of waste for which they would be liable 1 [See subject " Waiver" in note on Necessity and Form of Particular Allega tions, p. 689, where cases are cited in support of, and in opposition to, the rule stated in the text. See also Omaha Consolidated Co. v. Burns (1895), 44 Neb. 21, 62 N. W. 301; Olson v. Snake River Valley R. R. Co. (1900), 22 Wash. 139, 60 Pac. 156; New England Loan & Trust Co. v. Browne (1900), 157 Mo. 116, 57 S. W. 760.] 2 Pier v. Heinrichoffen, 52 Mo. 333, 335. 8 Woolsey v. Williams, 34 Iowa, 413, 415. 4 Lumbert v. Palmer, 29 Iowa, 104, 108. See also Hudson v. McCartney, 33 Wis. 331, 346, and cases cited. in an action properly brought. This cause of action being wholly different from that alleged, the complaint was dismissed.1 The petition in an action of forcible entry and detainer stating that the defendant was holding over after the expiration of his lease, the plaintiff was not permitted to show that he obtained possession through fraud; since this would be the averment of one material fact, and the proof of another.2 When the complaint set forth a contract, and on the trial the plaintiff proved without objection a materially different one, and was thereupon nonsuited, the nonsuit was sustained, the court adding that the admission of the evidence without objection made no difference with the operation of the rule. And if a complaint sets forth a cause of action for a nuisance of a certain specified kind, an essentially different one cannot be proved; as, for example, in an action by a lower riparian owner for increasing the flow of a natural watercourse by draining other streams into it, the plaintiff was not permitted to prove a nuisance which consisted solely in the fouling of such watercourse by the defendant. A written contract having been set out in the petition, the plaintiff cannot in place of it prove facts going to show that the defendant is estopped from denying such contract. When a petition stated a cause of action for work and labor done by the plaintiff for the defendant, but the proofs showed that defendant had only guaranteed the payment by other persons for services rendered to them, a recovery was held impossible. An allegation that the defendant erected a fence across a highway, and thereby obstructed it, cannot be sustained by proof that the defendant built a stone fence fifteen rods from the road, and thereby caused water to flow upon and obstruct the same, for the causes of action are different; and upon an allegation that the plaintiff did work and labor for defendant on his milldam, proof that the services were performed in harvesting grain is a fatal variance.8 1 Tracy v. Ames, 4 Lans. 500, 506. 2 Goldsmith v. Boersch, 28 Iowa, 351, 354. 3 Johnson v. Moss, 45 Cal. 515. 4 O'Brien v. St. Paul, 18 Minn. 176, 181. Phillips v. Van Schaick, 37 Iowa, 229, 237. It was added that if the plaintiff wishes to avail himself of an estoppel it must be specially pleaded, citing Ransom v. Stanberry, 22 Iowa, 334. 6 Packard v. Snell, 35 Iowa, 80, 82. 7 Hill v. Supervisor, 10 Ohio St. 621. [Variance. In the following cases it was held that there was a variance between pleadings and proof: Negligence. An allegation that the engineer of the train which struck plaintiff § 452. *558. Variance Fatal where Cause of Action in Tort Alleged and one in Contract Proved. By far the most important distinction directly connected with this doctrine is that which discovered plaintiff in time to prevent the injury, and proof that it was the fireman and not the engineer who saw plaintiff (not curable by amendment): Chun v. Receivers (1901), Ky., 64 S. W. 649; an allegation of negligence in running defendant's cars, and proof that defendant did not provide plaintiff with a safe place in which to work: Thompson v. Citizens' St. Ry. Co. (1898), 152 Ind. 461, 53 N. E. 462; an allegation that plaintiff injured herself by stepping into a hole caused by a missing board in a sidewalk, and proof that she stepped upon a loose board, which "rocked," turning her foot and causing it to go into the hole: Gagan v. City of Janesville (1900), 106 Wis. 662, 82 N. W. 558; an allegation of an injury to a pas senger by reason of defendant's negligence, and proof of injury to a trespasser by reason of gross negligence: Fitzgibbon v. Chicago, etc. Ry. Co. (1899), 108 Ia. 614, 79 N. W. 477; an allegation that defendant was negligent in failing to stop its train at a station while plaintiff was getting off, and proof that defendant was negligent in not showing plaintiff the safe way to go from one train to another: Moss v. North Carolina R. R. Co. (1898), 122 N. C. 889, 29 S. E. 410; an allegation that the gripman pushed plaintiff from the car, and proof that plaintiff fell in trying to dodge a blow aimed at him by the gripman: Raming v. Metropolitan St. Ry. Co. (1900), 157 Mo. 477, 57 S. W. 268; an allegation that fire was negligently taken from defendant's threshing engine and placed in the stubble where it communicated to plaintiff's property, and evidence that defendant was negligent in not properly extinguishing the fire after having properly taken it from the engine: Lieuallen v. Mosgrove (1898), 33 Ore. 282; 54 Pac. 200; an allegation of joint negli gence and proof of negligence of defendants severally: Chetwood v. California Nat. Bank (1896), 113 Cal. 414, 45 Pac. 704; an allegation of negligence in operation of railroad and proof of negligence in use of defective spark arrester: Missouri, etc. Ry. Co. v. Garrison (1903), — Kan., 72 Pac. 225; location of accident: Dolan v. City of Milwaukee (1895), 89 Wis. 497, 61 N. W. 564; Kolb v. City of Fond du Lac (1903), 118 Wis. 311, 95 N. W. 149. Common Carriers, Actions against. Plaintiff having sued defendant on its common-law liability as a common carrier, cannot recover on proof of a special contract limiting the common-law liability: Normile v. Oregon, etc. Co. (1902), 41 Ore. 177, 69 Pac. 928; where a complaint is drawn on the theory of defendant's liability as a common carrier, a recovery cannot be had against defendant as a warehouseman: Same case. But see, contra, Cavallaro v. Texas, etc. Ry. Co. (1895), 110 Cal. 348, 42 Pac. 918. Fraud. In an action to set aside a sale as fraudulent, allegations of actual fraud are not supported by proof of constructive fraud. The court said: "If the vice which renders the sale null as to them [defendants] was the existence of actual fraud, the complaint must, as this complaint does, charge its presence. If the vice was constructive fraud, then it is incumbent upon the plaintiffs to state the matters which constitute that cause of action. Of course, both actual and constructive fraud may be pleaded in the same complaint, but if actual fraud only be set up, then, although proof of constructive fraud may be evidence, having a tendency to support the allegation of actual fraud, yet the finding of constructive fraud is not of itself sufficient to support a judgment, for the allegations and proof must correspond:" Finch . Kent (1900), 24 Mont. 268, 61 Pac. 653. See also Kley v. Healey (1896), 149 N. Y. 346, 44 N. E. 150, where allegations of fraud were held not to be supported by the proof. Title. A party cannot plead absolute ownership of property and prove a lien upon it merely, nor vice versa: Randall v. Persons (1894), 42 Neb. 607, 60 N. W. 898. See Title, p. 687. But see Olson v. City of Seattle (1903), 30 Wash. 687, 71 Pac. 201, p. 619, note 1. Held, in Smith v. Runnels (1896), 97 Ia. 55, 65 N. W. 1002, that subsists between causes of action ex contractu and those ex delicto. It is settled by an almost unanimous series of decisions in various plaintiff in a suit to partition land, who claims in the petition to have a life estate therein, is not entitled to relief on the ground that she has an estate in fee simple. See, however, the following cases: Where the complaint alleges title and right of possession in the plaintiff, a recovery may be had on proof that plaintiff owns the equity of redemption: Arrington v. Arrington (1894), 114 N. C. 116, 19 S. E. 278. In an action to recover land, plaintiff may allege title by inheritance and prove title by possession: Davis v. Leeper (1900), Ky., 56 S. W. 712. In an action to quiet title there is no variance between an allegation of title in fee and proof of an equitable title: Oliver v. Dougherty (1902), Ariz., 68 Pac. 553. Express and Implied Contract. Where the complaint alleges an express contract and proof shows an implied contract, and vice versa, no recovery can be had: Buell v. Brown (1900), 131 Cal. 158, 63 Pac. 167; Morrow v. Board of Education (1895), 7 S. D. 553, 64 N. W. 1126. Contra, Hecht v. Stanton (1895), 6 Wyo. 84, 42 Pac. 749. See also on this general question, Gillies v. Improvement Co. (1895), 147 N. Y. 420, 42 N. E. 196; Columbus, etc. Ry. Co. v. Gaffney (1901), 65 O. St. 104, 64 N. E. 152. Rescission. Where a breach of contract is alleged, the pleader cannot on the trial elect to rescind the contract and recover the portion of the price paid: Detroit Heating Co. v. Stevens (1897), 16 Utah, 177, 52 Pac. 379. Mortgage. Where a complaint is predicated on the theory of lack of mental capacity to execute a deed, no recovery can be had on theory that the deed is in reality a mortgage: Swank v. Swank (1900), 37 Ore. 439, 61 Pac. 846. Trust. In an action to enforce a trust, an allegation that a husband is trustee of property alleged to belong to his deceased wife's estate, is not supported by evidence that he had received money from his wife's separate property: Elmore v. Elmore (1896), 114 Cal. 516, 46 Pac. 458. Insurance. A complaint upon a contract of insurance for $500 upon a certain building is not supported by evidence of a contract for $600 insurance upon two buildings on the same lot: Waldron v. Home Mutual Ins. Co. (1894), 9 Wash. 534, 38 Pac. 136. Nuisance. Where, in an action against the city for damages caused by a nuisance, the petition charges that the city originated the nuisance, proof that it continued it only will not sustain a recovery, since in the latter case a request to abate is necessary: Rychlicki v. City of St. Louis (1893), 115 Mo. 662, 22 S. W. 908. Account and Account Stated. Where the petition sets up a cause of action on an open account, plaintiff cannot recover upon proof of an account stated, as the two are distinct and inconsistent: McCormick v. Interstate, etc. Ry. Co. (1900), 154 Mo. 191, 55 S. W. 252. Trespass. Where one act of trespass is alleged to have been committed at a designated time and place, no recovery can be had for a different act shown to have been committed at a different time: La Rue v. Smith (1897), 153 N. Y. 428, 47 N. E. 796. Contract. Plaintiff cannot allege one special contract and recover on proof of a different contract: Cremer v. Miller (1893), 56 Minn. 52, 57 N. W. 318; Winchester v. Joslyn (1903), Colo., 72 Pac. 1079. But under an allegation that plaintiff performed services for defendant "at his instance and request," evidence may be introduced showing facts giving rise to an implied contract only: Columbus, etc. Ry. Co. v. Gaffney (1901), 65 O. St. 104, 61 N. E. 152. Under an allegation that a grantee orally agreed to assume a mortgage "and thereby and otherwise became legally and equitably bound to the grantor and to the mortgagee to pay the same," evidence that the grantee executed a bond to pay the deficiency if any, is admissible: Wager v Link (1896), 150 N. Y. 549, 44 N. E. 1103. There is a variance between an allegation that a bond sued on was in the penal sum of $2,500 and evidence that it was in the sum of $1,500: Chicago, K. & W. Ry. Co. v. Evans (1896), 57 Kan. 286, 46 Pac. 303. Miscellaneous. An allegation that plaintiff is indebted to defendant is not sup States, that if a complaint or petition in terms alleges a cause of action ex delicto, for fraud, conversion, or any other kind of tort, ported by evidence that plaintiff's assignor Evidence Held Admissible under Particular is indebted to defendant: Anderson v. Alseth (1895), 6 S. D. 566, 62 N. W. 435. There is a fatal variance between an allegation that a contract was made by all the heirs of a named intestate and evidence that it was made by a portion only: Thompson v. Fenn (1896), 100 Ga. 234, 28 S. E. 39. Where suit is brought on a sheriff's bond for damages alleged to have been sustained by the failure of the sheriff to properly perform his duties, the plaintiff cannot recover on account of breaches of duty not alleged in the declaration: Hall & Brown Co. v. Barnes (1902), 115 Ga. 945, 42 S. E. 276. If the pleading is of allowed claims and the proof is of claims presented but not adjusted, there is a variance: Hofmann v. Tucker (1899), 58 Neb. 457, 78 N. W. 941. A petition alleging that a certain sum had come to the husband by reason of the marriage, is not supported by evidence that the money was voluntarily allowed to the husband by the wife after marriage: Dillon v. Starin (1895), 44 Neb. 881, 63 N. W. 12. The fact that acts of negligence are alleged conjunctively does not require that all of them must be proved: Duell v. Chicago & N. W. Ry. Co. (1902), 115 Wis. 516, 92 N. W. 269; Stern v. City of St. Louis (1901), 161 Mo. 146, 61 S. W. 594; Terre Haute, etc. R. R. Co. v. Sheeks (1900), 155 Ind. 74, 56 N. E. 434; Cameron v. Bryan (1893), 89 Ia. 214, 56 N. W. 434. And in general, if one alleges more than is necessary, such additional allegations need not be proved: Young v. Gormley (1903), 119 Ia. 541, 93 N. W. 565; Kaline v. Stover (1893), 88 Ia. 245, 55 N. W. 346; Reizenstein v. Clark (1897), 410 Ia. 287, 73 N. W. 588; Harwood v. Davenport (1898), 105 Ia. 592, 75 N. W. 487; Anderson v. Union Terminal Ry. Co. (1901), 161 Mo. 411, 61 S. W. 874; Meyer v. Koehring (1895), 129 Mo. 15, 31 S. W. 449; Gannon v. Laclede Gas Co. (1898), 145 Mo. 502, 46 S. W. 968. But see, however, Botkin v. Cassody (1898), 106 Ia. 334, 76 N. W. 722, which appears inconsistent with this rule. Allegations. In general, the proof must be confined to the issues as made by the pleadings: Thompson v. Wertz (1894), 41 Neb. 31, 59 N. W. 518; Callen v. Rose (1896), 47 Neb. 638, 66 N. W. 639; Ayers v. Wolcott (1902), Neb. -, 92 N. W. 1036. See the following cases for specific illustrations of this rule: Acceptance: Thompson v. Perkins (1896), 97 Ia. 607, 66 N. W. 874. Agreement to deliver: Central R. R. Co. v. Hasselkus (1893), 91 Ga. 382, 17 S. E. 838. Agreement to pay for services: Owen v. Meade (1894), 104 Cal. 179, 37 Pac. 923. Breach of warranty: Snowden v. Waterman (1897), 100 Ga. 588, 28 S. E. 121. Contract: Duval v. Am. T. & T. Co. (1902), 113 Wis. 504, 89 N. W. 482. Description of property: Boyd's Adm'r v. Farmers' Bank (1902), Ky., 69 S. W. 964; Barnhart v. Ehrhart (1898), 33 Ore. 274, 54 Pac. 195. Employment: Holton v. Waller (1895), 95 Ia. 545, 64 N. W. 633. Extreme cruelty: Winterburg v. Winterburg (1893), 52 Kan. 406, 34 Pac. 971. Finding purchaser: Clark v. Allen (1899), 125 Cal. 276, 57 Pac. 985. Fraud: First Nat. Bank v. McKinney (1896), 47 Neb. 149, 66 N. W. 280. Goods sold and delivered: Gaar, Scott, & Co. v. Brundage (1903), 89 Minn. 412, 94 N. W. 1091. Illegal voting: McLain r. Maracle (1900), 60 Neb. 359, 83 N. W. 829. Indebtedness: Kleinschmidt v. Kleinschmidt (1893), 13 Mont. 64, 32 Pac. 1. Money loaned: Clarkson v. Kennett (1895), 17 Mont. 563, 44 Pac. 88. Negligence: Dickey v. Northern Pac. Ry. Co. (1898), 19 Wash. 350, 53 Pac. 347; McClellan v. Chippewa Valley Elec. Ry. Co. (1901), 110 Wis. 326, 85 N. W. 1018; Brown v. Benson (1897), 101 Ga. 753, 29 S. E. 215; Kelly v. Cable Co. (1893), 13 Mont. 411, 34 Pac. 611; Spaulding v. C. St. P. & K. C. Ry. Co. (1896), 98 Ia. 205, 67 N. W. 227; Lewis v. Schultz (1896), 98 Ia. 341, 67 N. W. 266; Jenkins v. McCarthy (1895), 45 S. C. 278, 22 S. E. 883; Neville v. St. Louis, etc. Ry. Co. (1900), 158 Mo. 293, 59 S. W. 123; Schwartzschild, |