Allen v. Goff

13 Vt. 148

Opinion

The opinion of the court was delivered by

Collamer, J.

The question presented for our decision is, whether there was a fatal variance between the declaration and the evidence.

Matter of allegation or averment, in a declaration, need be proved only in substance, and only so much thereof as makes a legal claim, and the remainder may be rejected as surplus-age. Matter of description must be proved precisely, perhaps literally, as set forth, and it cannot be rejected as sur-plusage, though its insertion was unnecessary.

It is quite clear that no more of the award need have been set forth than showed the plaintiff’s claim, which is only for the wheels. It was unnecessary to say anything about the money, for which he was not sueing. But what he did say was matter of description, and, had that varied from the award, it would have been fatal. But all he has said was precisely like the award, and there is therefore no variance. But because he inserted the money unnecessarily, that did not require him to go further and insert more unnecessary matter, to wit: the ten days. There was therefore no variance. It was but an omission of matter immaterial to his present claim.

Judgment affirmed.