Hixon v. Cubine

Hutcheson, Justice; 1. “The awarding of a nonsuit is erroneous when the evidence for the plaintiff authorizes a finding that he has proved his case as laid.” Flewellen v. Flewellen, 114 Ga. 403 (40 S. E. 301); Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280). 2. “An immaterial and unsubstantial variance between the pleading and the proof is not sufficient cause for nonsuit.” Rice v. Ware, 3 Ga. App. 573 (60 S. E. 301). In a suit to cancel a tax deed as a cloud on title, in which there is an allegation of tender of the amount paid at the tax sale, with interest and penalty, to the purchaser by one of the parties plaintiff, at a certain time and in a certain manner, evidence of a tender by the agent of the party at a like time and in a like manner is substantial proof of the allegation. 3. Under the above rulings, the pleadings and the evidence, the judge erred in granting a nonsuit. Judgment reversed. All the Justices eoncw. Julius Rinlc, for plaintiffs. Rosser & Shaw, for defendants.