The Court
said the provision of the constitution on this subject, relotes to questions of difficulty and importance where the law is doubtful, and the object is to settle a vexed question before all the judges. In other casés, the party is left to his appeal. We entertain no doubts in this case, nor do we think it presents any question which, from its doubtful character, “ought to be decided before .all the judges.” The object of the constitution in vesting a discretion in the court as to saving points, was to confine them to cases where the law is unsettled.
The
Chief
Justiceproceeded:—
“We regret that this objection has been made, and we should have been glad if the case could, have gone to the jury entirely on its merits; but the deft, had a right to make the objection, and we are bound to consider and decide it.
This is an action on the casé in tort, in which the plff. seeks to re1cover of the deft, damages for certain malicious and wrongful acts; and to sustain the action, it becomes necessary to set out, by way of inducement, a certain contract between the plff. and the Chesapeake and Delaware Canal Company. This contract, it is true, is not the cause of action in the present case, but it is the foundation of the action, or that through which alone it can be sustained; for without setting' this instrument out'in his declaration, the plff. could not entitle himself to damages against the deft. This, therefore, was a material and necessary averment, without'which the plff’s. declaration would be bad, it could not be struck out and leave a right of action remaining. It is essential to the existence of the right of action. With respect to what averments are necessary to be proved, the rule is, that if the whole of an averment may be struck out without destroying the plff’s. right of action, it is not necessary to prove it, for it is mere surplusage; but it is otherwise, if the whole cannot be struck .out Without getting rid of a part, essential to the cause of action; for then, though the averment be more particular than it need have been, the whole, must be proved as.laid, or the plff. cannot recover. 2
East,
452; 12
do.
452.
A distinction is now established between allegations of substance
and' allegations of matter of description. The former require to be
substantially,
the latter must be
literally,
proved; and if in the action on the case a contract, written instrument, or other entire subject matter, be alledged, it must be proved in the same manner as if the action were founded on it; the thing being entire and indivisible, the proof ought to support the allegation. And where a written instrument is not described by its tenor, but merely according to its substance and effect, if it be not what the legal construction of the instrument warrants, the variance will be fatal, although the allegation on which the variance arises is immaterial. 3
Bos. & Pul.
463. And the law is the same whether the allegation be merely matter of inducement, or be the immediate cause of the action; or whether the action be debt, assumpsit or in tort.
Many variances have been pointed out by the deft’s, counsel between- the instrument of writing alledged in the declaration, and that offered in evidence. Among those pointed out, it may not be necessary to take notice of any others than those which occur in the following clauses: “And to prevent misunderstandings and disputes it is hereby agreed, that Benjamin Wright, Esq. or some other competent engineer, to be selected by the party of the second part, shall be the inspector of the said works, and shall estimate the number of cubic yards of excavation, and also of embankment,
and his estimate thereof when certified to the party of the second part,
shall be final and conclusive between the parties;”—“And it is further agreed, that if the opinion of the engineer-in-chief for the time- being, in the employ of the party of the second part shall be, that the party of the first part refuses, or unreasonably neglects to prosecute this contract, such-engineer may certify the same to the said party of the second part, and on his certificate the said party of the second part shall have the power of determining that he has abandoned it, and such determination shall altogether exonerate the said party of the second part, from every obligation imposed on them by the said contract
except to pay as aforesaid for work already done.”
Two essential parts of this part of the contract have been omitted in the declaration, to wit: in the first clause the words “and his estimate thereof,-when certified to the party of the second part,” for without this certificate, the Company never could have declared the contract abandoned. It is an essential part of the agreement without which,-the residue of the "clause is materially and substantially altered. In the second clause, the words “except to pay as aforesaid, for work already done,” are omitted in the declaration, and these words form a most material and important part of the contract, for without them, the plff. could not have demanded payment for the work he had accomplished. The declaration, therefore, sets out a contract substantially different from that offered in evidence. They are in fact different instruments, and not as they should be, identically the same. There are other variances between the instrument set out and that produced, equally fatal, but of which it is not necessary for the court to take notice.
It is true, as has been urged by the plff’s. counsel, that it is not necessary to set out the whole contract, when you profess only to
set out its substance; but, when you attempt to set out any part of a contract according to its substance and legal effect, you must set it out truly; and, if the sense or meaning of that part of the contract be altered, then it cannot be the
same
as that alledged to have been made. The proof does not support the allegation; there is a variance, because the sense and meaning are different. It is enough to set out as inducement to the action, so much of a contract as will enable the plff. to sustain his case: yet he must set out what he undertakes to alledge truly. No one can doubt but that the sense and meaning of the two clauses referred to the court, are substantially variant from the clauses set out in the declaration. They are not the same, and the variance between them we think fatal.
Read, Jr.,
and
Rogers,
for plff.
Frame
and
J. JL. Bayard,
for deft,-
The declaration purports to set out the schedule of prices
in hsec verba.
Here the plff. has bound himself by his own allegation, to strict proof of the instrument. A mere variance in the spelling of a word, if the word be changed into one of a different meaning, will be fatal. But in this case substantial and material variances occur. In this contract, the parties attach very different meanings to the terms “section”. and “station,” and yet the declaration purporting to set out the schedule by words and figures, uses one for the other.
Free access — add to your briefcase to read the full text and ask questions with AI
The Court
said the provision of the constitution on this subject, relotes to questions of difficulty and importance where the law is doubtful, and the object is to settle a vexed question before all the judges. In other casés, the party is left to his appeal. We entertain no doubts in this case, nor do we think it presents any question which, from its doubtful character, “ought to be decided before .all the judges.” The object of the constitution in vesting a discretion in the court as to saving points, was to confine them to cases where the law is unsettled.
The
Chief
Justiceproceeded:—
“We regret that this objection has been made, and we should have been glad if the case could, have gone to the jury entirely on its merits; but the deft, had a right to make the objection, and we are bound to consider and decide it.
This is an action on the casé in tort, in which the plff. seeks to re1cover of the deft, damages for certain malicious and wrongful acts; and to sustain the action, it becomes necessary to set out, by way of inducement, a certain contract between the plff. and the Chesapeake and Delaware Canal Company. This contract, it is true, is not the cause of action in the present case, but it is the foundation of the action, or that through which alone it can be sustained; for without setting' this instrument out'in his declaration, the plff. could not entitle himself to damages against the deft. This, therefore, was a material and necessary averment, without'which the plff’s. declaration would be bad, it could not be struck out and leave a right of action remaining. It is essential to the existence of the right of action. With respect to what averments are necessary to be proved, the rule is, that if the whole of an averment may be struck out without destroying the plff’s. right of action, it is not necessary to prove it, for it is mere surplusage; but it is otherwise, if the whole cannot be struck .out Without getting rid of a part, essential to the cause of action; for then, though the averment be more particular than it need have been, the whole, must be proved as.laid, or the plff. cannot recover. 2
East,
452; 12
do.
452.
A distinction is now established between allegations of substance
and' allegations of matter of description. The former require to be
substantially,
the latter must be
literally,
proved; and if in the action on the case a contract, written instrument, or other entire subject matter, be alledged, it must be proved in the same manner as if the action were founded on it; the thing being entire and indivisible, the proof ought to support the allegation. And where a written instrument is not described by its tenor, but merely according to its substance and effect, if it be not what the legal construction of the instrument warrants, the variance will be fatal, although the allegation on which the variance arises is immaterial. 3
Bos. & Pul.
463. And the law is the same whether the allegation be merely matter of inducement, or be the immediate cause of the action; or whether the action be debt, assumpsit or in tort.
Many variances have been pointed out by the deft’s, counsel between- the instrument of writing alledged in the declaration, and that offered in evidence. Among those pointed out, it may not be necessary to take notice of any others than those which occur in the following clauses: “And to prevent misunderstandings and disputes it is hereby agreed, that Benjamin Wright, Esq. or some other competent engineer, to be selected by the party of the second part, shall be the inspector of the said works, and shall estimate the number of cubic yards of excavation, and also of embankment,
and his estimate thereof when certified to the party of the second part,
shall be final and conclusive between the parties;”—“And it is further agreed, that if the opinion of the engineer-in-chief for the time- being, in the employ of the party of the second part shall be, that the party of the first part refuses, or unreasonably neglects to prosecute this contract, such-engineer may certify the same to the said party of the second part, and on his certificate the said party of the second part shall have the power of determining that he has abandoned it, and such determination shall altogether exonerate the said party of the second part, from every obligation imposed on them by the said contract
except to pay as aforesaid for work already done.”
Two essential parts of this part of the contract have been omitted in the declaration, to wit: in the first clause the words “and his estimate thereof,-when certified to the party of the second part,” for without this certificate, the Company never could have declared the contract abandoned. It is an essential part of the agreement without which,-the residue of the "clause is materially and substantially altered. In the second clause, the words “except to pay as aforesaid, for work already done,” are omitted in the declaration, and these words form a most material and important part of the contract, for without them, the plff. could not have demanded payment for the work he had accomplished. The declaration, therefore, sets out a contract substantially different from that offered in evidence. They are in fact different instruments, and not as they should be, identically the same. There are other variances between the instrument set out and that produced, equally fatal, but of which it is not necessary for the court to take notice.
It is true, as has been urged by the plff’s. counsel, that it is not necessary to set out the whole contract, when you profess only to
set out its substance; but, when you attempt to set out any part of a contract according to its substance and legal effect, you must set it out truly; and, if the sense or meaning of that part of the contract be altered, then it cannot be the
same
as that alledged to have been made. The proof does not support the allegation; there is a variance, because the sense and meaning are different. It is enough to set out as inducement to the action, so much of a contract as will enable the plff. to sustain his case: yet he must set out what he undertakes to alledge truly. No one can doubt but that the sense and meaning of the two clauses referred to the court, are substantially variant from the clauses set out in the declaration. They are not the same, and the variance between them we think fatal.
Read, Jr.,
and
Rogers,
for plff.
Frame
and
J. JL. Bayard,
for deft,-
The declaration purports to set out the schedule of prices
in hsec verba.
Here the plff. has bound himself by his own allegation, to strict proof of the instrument. A mere variance in the spelling of a word, if the word be changed into one of a different meaning, will be fatal. But in this case substantial and material variances occur. In this contract, the parties attach very different meanings to the terms “section”. and “station,” and yet the declaration purporting to set out the schedule by words and figures, uses one for the other. The contract makes a distinction -between “back-drains” and other drains, whereas, the declaration confounds them; the prices of the work as set out in the declaration, vary from the instrument produced; and the words “deepening of excavation” are used for “deficiency of excavation. ” Even if this schedule had been set out according to its substance and legal import, and not by its tenor, these variances would be fatal; because, the schedule is substantially different from that alledged in the declaration. Section cannot here mean station; deepening cannot be deficiency, nor one price mean another. The identity of this instrument is thus destroyed: it is not the same as that described in the declaration; and we are of opinion that, as the allegations and proofs should correspond in this case as in other cases, the instrument offered in evidence does not support the declaration.
Whenever we
discover
a variance we must stop. We cannot inquire whether it be a small or an important variance, or whether they be numerous or few, it is sufficient that there is a variance, that it is a departure in the allegation of the instrument, from the instrument itself. If small and unimportant variations are permitted to pass unnoticed, where are you to stop? What will be considered as important variances? We know no better rule than to say where there is a variance, great or small, it is fatal. We are therefore of opinion that the contract offered in evidence is not admissible. ”
The plff. offered another contract in evidence in support of the second count in his narr, which was objected to on the same grounds, and rejected without argument.
The rejection of these contracts terminated the cause, and a non-suit was entered.
Judgment of nonsuit,.
Note. The plff. took
a.
bill of exceptions to the opinion of the court rejecting this evidence, and carried the case to the Court of Appeals. At the June Term, 1832, that court affirmed the decision. The case was not much argued, if at all, in the Court of Appeals.