Shaw v. Noble

Duffel, J. This suit was commenced against the defendant, E. P. Noble, as owner of the steamer Compromise, to recover five hundred dollars, the balance of the price of said boat still due, as also for stores and supplies furnished to the said boat, and the premiums for her insurance. The members of the commercial firm of Connolly & Moore were, by a supplemental petition, made defendants, as co-owners, with Noble, of the compromise. The defendant, Noble, is sought to be made responsible, as owner, on the allegation “ that in the month of July, 1856, petitioners sold, conveyed and delivered unto the said Noble, the steamer Compromise, for the sum and price of ifi>7,500, all of which has been paid, except the sum of five hundred dollars, for-which H. A. Nunnally, who was the master of said boat, in the month of October, 1856, executed and delivered to petitioners the note of the steamboat Compromise and owners, payable lst-4th of April, 1857, &c.” We will first notice the objection, on the score of interest, to tho testimony of the witnesses, H. A. Nunnally and /. W. Watt. The first named witness had a direct interest to fix the liabilities of the defendants, being himself personally bound for the whole amount in litigation; and the witness, Watt, had a direct interest the other way, for, according to his testimony, he is equally responsible with the defendant, Noble. We think that the District Judge should not only have disregarded the testimony of the witness, Nunnally, but also that of the other witness; and if we here allude to the testimony of the witness, Watt, it is because it appears to have been received with a reservation. Our attention is next called to a bill of exception, taken by the defendants, to the introduction, in evidence, of a copy of the sale of the steamboat Compromise, from the plain tiffs, as agents of ,D. O. Hill, M. A. Cox and B. W. Kay, to E.P. Noble, on the 1st day of October, 1856. [306] The objection is, that “ the petition contained no allegation of any such sale of the date above sot out, and by parties thus named and interested, and that thus there was a want of correspondence between the averment and the proof offered.” The objection was well taken, and should have been sustained, for it was a violation of the rule that the allegata and probata must correspond. The variance was in the substance itself, the names of the vendors; and as the defendants were sought to be made responsible for the price and debts of the boat, as owners, under a title from the plaintiffs, at a certain period, evidence of a different title could not be received. In actions upon contracts and deeds, if any part of the contract proved, or deed described, should materially vary from the contract or deed as stated in the pleadings, it will be fatal. Greenleaf, vol. 1, $ 63, 66 aud 69. Deloney et al. v. Smith et al., 3 La. 418; Lyons v. Jackson, 4 R. 465; Nicholls v. His Creditors, 9 R. 47 6. The rejection of the sale from plaintiffs, as agents, to one of the defendants, necessitates a judgment of nonsuit, which will be an affirmance of the judgment of the District Court. It is, therefore, ordered and decreed, that the judgment of the lower court be affirmed with costs. Land, J., absent.