The opinion of the court was delivered by
Royce, J.
The request of the defendants that the court should instruct the jury that the plaintiff could not recover by reason of the variance between the proof and the declaration, was rightly *170refused. The variance complained of was not between any evidence introduced by the plaintiff and the declaration, but was between evidence introduced by the defendants and the declaration. It is.not competent for a defendant, by the introduction of evidence contradicting facts alleged in a declaration, to avail himself, as matter of law, of the benefit of such evidence as constituting a variance between it and the declaration.
The court instructed the jury that the plaintiff was entitled to recover. It is claimed that this instruction was erroneous, for the reason that the plaintiff failed to prove an allegation in his declaration that was necessary to his right of recovery. The gist of the action is, the fraudulent representations of the defendants as to the location of a certain piece óf land in the town of Stannard that the plaintiff alleges he purchased of them. The allegation that was not proved was that which described the land as “ all the land and buildings thereon which were conveyed to George F. Smith and Daniel P. Smith, and by deeds dated July 16, A. D. 1867, and by said Smith to said defendants, by deed dated Oct. 12, 187—.” The rule is, that if the whole of an averment or allegation may be struck out without destroying the plaintiff’s cause of action, it is not necessary to prove it; but that if the whole cannot be struck out without getting rid of a part essential to the cause of action, then, though the averment or allegation be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover. 1 Chitty Pl. 372, and cases cited.
The source of the defendant’s title to the land was not essential to the plaintiff’s right .of recovery, and the whole of this allegation might be stricken out without destroying his right of action. It was superfluous ; and that which in pleading may be rejected as surplusage, will not vitiate ; and that is suplusage, the statement of which, whether in a general or circumstantial manner, is quite unnecessary to the point in question. 6 Comyus Dig. title, Pleader, 60.
It is claimed that the judgment should have been arrested because it is not alleged that any legal consideration was paid for the land, nor that the purchase was ever consummated by a legal conveyance. The rule as laid down in 2 Tidd Pract. 60, is, that *171where the plaintiff has stated his title or ground of action defectively or inaccurately (because, to entitle him to recover, all circumstances necessary in form or substance to complete the title or cause of actiou so imperfectly stated, must be proved at the trial), it is a fair presumption after verdict that they were proved ; and hence, that a verdict will aid a title defectively set out; and that after verdict it will be presumed that what is expressly stated in ihe declaration, or is implied from the facts which are stated, was proved. This rule was approved in Harding v. Cragie, 8 Vt. 501; Needham v. McAuley, 13 Vt. 68; Lincoln v. Blanchard, 17 Vt. 464; Brown v. Hitchcock, 28 Vt. 452; and in Hendrick v. Seeley 6 Conn. 176. It is to be borne in mind that the question is not, whether the objections made would have been fatal if the declaration had been demurred to, but whether they are fatal after verdict. The court will make inferences in support of a verdict that would not be allowable upon a demurrer. The plaintiff alleges that he bargained with the defendants to buy of them a certain piece of land, and said land is described in a deed from said defendants to him, and that he purchased from said defendants the land described in said deeds. The presumption is that these allegations were proved ; and the most that can be claimed in relation to the statement of the plaintiff’s title is, that it is defectively stated, and that was cured by the verdict. The word purchased, as used in the allegation, we understand to mean bought or acquired by paying a price ; and inasmuch as it was necessary to the plaintiff’s light of recovery to prove that he gave a consideration for the land, the presumption after verdict is that this fact was proved.
Judgment affirmed.