Jones v. Louderman

Wagnek, Judge, delivered the opinion of the court. The first objection urged by the appellant is that there was a variance between the contract as set out in the petition and the one read in evidence. In declaring upon a written instrument or contract, it is not necessary that it should be set out in precise and identical terms, but if it is pleaded according to its legal meaning and effect it will be sufficient. The code of practice has not changed the well-known rule of evidence as it existed at common law, that the allegations and the proofs must substantially correspond. A party cannot declare for one cause of action and recover on an entirely different and distinct cause. If there is a variance in the evidence, he should amend his pleadings so as to make them conform to the truth, else the objection will be fatal. In this case the petition shows the contract and the breaches, but it is deficient in not averring the consideration. Had a demurrer been filed at the proper time, it would have been clearly sustainable ; but as no objection was taken either by demurrer or answer, the defect may be considered as waived. We cannot say that the contract offered and admitted in evidence went to establish a different cause from that set forth in the petition : it tended to prove the same contract, though defectively stated. The motion in arrest is intimately blended with the same question and is addressed to the sufficiency of the petition. The law is well established in this State — indeed, wherever the common law is known and practised — that although a petition may be defective, yet if it appear after verdict that [291] the verdict could not have been given, or the judgment rendered, without proof of the matter omitted to be stated, the defect will be cured" and the judgment will not be arrested. — Frost v. Prior, 7 Mo. 314; Palmer v. Hunter, 8 Mo. 512; Roper v. Clay, 18 Ills. 383; Shaler v. Van Wormer, 33 Mo. 386; Richardson v. Farmer, 36 Mo. 35. The issue joined on the trial necessarily required proof of the facts defectively stated or omitted, and without such proof the jury could not have found the verdict or the court rendered judgment. The answer contained a complete denial or traverse of every statement in the petition, and the record shows that the appellant was permitted to introduce (and rightly) all the evidence that he had and that he could have introduced had there been no defect in the petition. The judgment is affirmed. The other judges concur.