Ammel v. Noonar

[406] The opinion of the court was delivered by Dunton, J. The defendant claims that there is a fatal variance between the contract or agreement set forth in the declaration and the one proved on trial. I. While in stating the consideration of a promise or contract it is necessary that the entire consideration should be set forth in the declaration, the rule is different as to stating the defendant’s agreement. It is only necessary to set forth in the declaration, with correctness, the particular promise or part of the agreement for the alleged breach of which suit is brought. This the plaintiff did, except as to the amount of the debt the defendant agreed to pay ; and the omission to set forth the promise or agreement to pay the other mortgages and debt constitute no variance. 1 Chit. Pl. 316; Allen v. Goff, 13 Vt. 148; Morrill v. Rickey, 18 N. H. 295; Favor v. Philbrick, 7 N. H. 326. The declaration alleges “that the defendant * * * promised the plaintiff that, if she would deed to him certain land, &c., the defendant would, in consideration thereof, pay a certain debt which the plaintiff was owing to one George E. Field * * * of the sum of, to wit, sixty dollars.” The declaration was supported by the testimony, except as to the amount of the debt in question, which was shown by the evidence to be fifty-two dollars instead of sixty, as alleged in the declaration. The amount of the debt being averred under a videlicet, we do not think the plaintiff was bound to prove the exact sum as laid. The purpose for which matter is so alleged is, that the party pleading it may not be strictly bound by it; and a videlicet, when followed by numbers or amount, often indicates that the pleader has not attempted to state the sum with precision. Crispin v. Williamson, 8 Taunt. 107; Bray v. Freeman, Ib. 197; Cooper v. Blick, 4 A. & E. n. s. 915; 1 Chit. Pl. 313, 316. A videlicet, however, will not avoid a variance in an allegation of material matter which is of the essence of the contract or description, and essential to its identity. Says Starkie: “ In cases, of contract, the allegations of sums, magnitude, and duration are [407] usually in their very nature essential to the identity of the contract; they are therefore descriptive, and must in general be proved as laid, unless the mode of averment shows that the party did not profess to state the sum, magnitude, number, &c., precisely.” 1 Stark. Ev. 447; Bray v. Freeman, supra. In this case, although the amount alleged is descriptive of the debt in question, the mode of its averment shows that the pleader did not attempt to state the sum precisely ; and the debt being also described as “ a certain debt the plaintiff was owing to one George E. Field,” we do not think the amount alleged so essential to the identity of the contract as to make the variance fatal. II. The alleged defects in the declaration sought to be reached by the motion in arrest of judgment are, 1. No sufficient consideration is stated for the alleged promise ; 2. The allegation as to deeding the land to the defendant is defective in not stating the time it was done. We fail to see why a sufficient consideration to support the alleged promise is not set forth in the declaration ; and the omission to state the time the land was deeded to the defendant could only be taken advantage of, if at all, by special demurrer. After verdict, the court will support the declaration by every legal intendment. Such defects as complained of, are cured by the verdict. Hendricks v. Seeley, 6 Conn. 176; Richardson v. Eastman, 12 Mass. 505; Morey v. Homan, 10 Vt. 565. Judgment affirmed.