McDonald v. Walker, 95 Ala. 172

95 Ala. 172 | Ala. | 1891

MoCLELLAN, J.

The general principle, that the .allegations of a bill in equity and the evidence adduced at the hearing must correspond, is applied with the greatest strictness to bills for the specific performance of contracts, to the extent indeed of requiring absolute correspondence, not only between every essential averment and the proof, but also between every redundant and superfluous averment with respect to a. material fact, or descriptive of a matter or thing necessary to be alleged, — Daniell’s Ch. Pl. & Pr., 860; Goodwin v. Lyon, 4 Port. 297; Ellis v. Burden, 1 Ala. 458; Ellerbe v. Ellerbe, 42 Ala. 643; Winston v. Mitchell, 87 Ala. 395; Webb v. Crawford 77 Ala. 440.

Thus, where the bill alleged that the payments under a contract sought to be enforced were to be made in five equal annual installments, and the proof was that they were to be made in four or five such installments, it was held that the variance was fatal, and that a decree for specific performance of the contract was properly refused. — Aday v. Echols, 18 Ala. 353. And where the' bill averred that the contract was made on Sept. 30, 1885, while the proof showed that it was made September 30,1886, the variance was held to be frtal to relief; and this notwithstanding the abstract rights of the parties were the same, whether the contract bore the one or other of these dates. The court said: “There is no class of cases in which correspondence between the allegations of the bill and the proof is more rigidly exacted than in suits for the specific performance of contracts. Tbe allegation of tbe time wben tbe contract is made is descriptive of tbat wbicb is material, and tbe variance between tbe allegation and proof is fatal.” — Johnson v. Jones, 85 Ala. 286 ; also, Hamaker v. Hamaker, 85 Ala. 231.

Tbe same doctrine is somewhat more fully stated by BeicKELL, 0. J. as follows: “Tbe rule prevailing in courts of equity is, tbat pleading and proof must correspond. It is not only necessary tbat tbe substance of the case made by each party should be proved, but it must be substantially the same case as tbat wbicb be has stated upon tbe record ; for tbe court will not allow a party to be taken by surprise by tbe other side proving a case different from that set up in tbe pleading. — Floyd v. Ritter, 56 Ala. 356 ; Alexander v. Taylor, Ib. 60. Tbe averment of tbe bill is, in general terms, tbat tbe debt secjired' by tbe deed of trust has been fully paid. This is followed by an averment more precise, stating tbe time, mode and source of payment, and describing tbe particular transaction from wbicb it was derived. Tbe latter averment may have been unnecessary and redundant. A general statement or averment of tbe payment of tbe debt would have been sufficient, without descending to a statement of tbe particular facts or circumstances proving or conducing to prove it. If redundant allegations are intro.-duced into pleading, and they are descriptive of tbat wbicb is material, a variance between tbe allegations and proof is fatal — of tbe same consequence as tbe variance between tbe allegation of an essential fact, of tbat wbicb is material, and tbe evidence or proof of tbe fact. — 1 Greenl. Ev. §67. Tbe same measure of relief may be obtainable upon the facts proved, as could have been obtained if tbe particular facts averred bad been proved; but tbe court can not permit tbe opposite party to be misled and taken by surprise by tbe proof of a case differing from tbat set up in tbe pleadings, and wbicb, it is presumed, be came prepared to meet, as it is tbe ease be bad notice to resist.”' — Floyd v. Ritter, supra; Meadows v. Ashew, 56 Ala. 584 ; Bellows v. Stone, 14 N. H. 175; Gilmer v. Wallace, 75 Ala. 220.

Tbe application of tbe doctrine of tbe foregoing authorities to tbe case at bar, leads us to tbe same result attained by tbe City Court. Tbe contract sought to be enforced is evidenced by a bond for title upon payment of purchase-money. Tbe bill alleges tbat this bond was executed jointly and severally by Alburto Martin and Marion A. May. If tbe evidence establishes the execution of any_bond, it is not tbat of Martin and May but tbat of Martin alone. Even if it be conceded that, bad the averment been that the bond was executed by Martin alone, the complainants — other considerations being pretermitted — would be entitled to the relief prayed on the evidence we find in this record ; even conceding that, although the sale was made by Martin and May, and the land at the time belonged to them as tenants in common, the complainants, in view of Martin’s subsequent acquisition of May’s interest, would be entitled to the relief prayed on averment and proof of a bond executed by Martin alone; conceding for the argument, in short, that the averment that May also executed the bond was not material to complainants’ case, but redundant and superfluous; yet it is descriptive of the bond, and the bond is absolutely and essentially material. And this material thing thus laid and described' became material as laid and described, and had to be proved with all the particularity, so far as May’s relations to it are concerned, that confessedly would have been necessary had complainants’ rights in point of fact depended upon the execution of the bond by May. This variance between the averments' of the bill and the proof adduced at the hearing is fatal to the relief prayed; and the decree denying that relief and dismissing the bill is affirmed.