
    CHERAW DISTRICT,
    SPRING TERM,
    1797.
    Perkins v. McIntosh.
    Where the plaintiff declares'specially upon a contract, it rhtist he proved as laid : and even immaterial'má"unnecessary allegations, if they are relevant to the cause of action, 'cannot be rejected as surplusage, [vide Commissioners of the Treasury v. Brevard, ante 11.]
    Assumpsit. The declaration contained two special counts, viz. 1. That one O. was indebted to the plaintiff, for the rent of a saW mill, in the sum of £63.5, being'for two years and five months rent in arrear ; of which saw mill, the' plaintiff having been legally-seized and possessed, he had let and demised the same to the said O. at the certain yearly rent of £¿6.13.4 : and that the said O. beitig so indebted, the plaintiff distrained on the premises, goods of the said O., to satisfy the said rent in arrear,- and had the same goods in possession ; and thereupon, at the instance and request of the defendant, and in'consideration of the promise and undertaking of! the defendant, by writing itndef’the hand of the defendant, to pay the said £63.5s., to be p'aid' in lumber at "Georgetown, whoa requested, delivered up and released the said goods, from the distress.
    2. Thatthe "said Ó. being indebted as above, for rent of a sawmill, let and demised to him by the plaintiff, and the plaintiff having distrained goods, &.c., the plaintiff,' at the request of the del fendant, and id consideration of the promise of the defendant, in writing, a copy of which is filed, tó'pay the said sum of £63.5s. to the plaintiff,' in lumber, in Georgetown,, when requested, ceased to prosecute his legal remedy, by distress, for'thc said rent, &c.
    The defendant’s written assumption, referred to in the declaration, was in these words : “ Sir — Agreeably to a letter I wrote .you some time ago, wherein I promised to see you-paid in lumber, for the rent of your mill, which Mrs. O’Neal rent — am informed you aré not satisfied with it, as there is no place mentioned for the'delivery of the lumber. I now promise to see you paid'in lumber, delivered in Georgetown. I am, &c., Alexander McIntosh. 3d July, 1789.”
    This letter was given in evidence; and a witness testified to this effect: that he understood the plaintiff had distrained a quantity of lumber, belonging.to O’Neal, jfor about £30 rent: that he' saw a.' paper which was called a distress warrant, and heard it read ; but ■ knew not how it had been obtained : and that-he understood from theparties there was.upwards ofone year’s rent due. He understood ■from O’Neal, that the defendant was to pay the rent for-him to the ■plaintiff, or be his security. He rather thought-the rent was not all due for two years ; but O’Neal acquiesced in the distress. This was the substance of .the evidence given for the plaintiff. On behalf of the defendant, it .was contended, that the evidence produced was insufficient to maintain the declaration, and that the plaintiff Ought to be nonsuitad. That the special agreement, stated in the declaration, ought to-be proved as laid ; whereas-the proof given, ■ is variant, in many particulars, from the facts and allegations set forth in the declaration. The defendant’s counsel distinguished cases of indebitatus assumpsit, from cases of special assumpsit: and insisted, that however unnecessary it might be in actions for goods sold and delivered, work and labor done, &c., when the law implies a contract, to prove exactly the precise contract alleged in .the declaration ; yet where there has been an assumpsit in deedi ■where, m fact, there has been a special agreement between the parties, it is necessary such agreement should be substantially and truly stated, and that the proof should correspond with the allegations and statement of the case. For that in the latter case, the ..terms of the contract being express, and settled between the parties, tlley must suPPosec^t0 know precisely what those terms are, and therefore ought to set them forth truly. That it was not necessary, in this case, for the plaintiff' to state any thing more than the substance anc* l£gal effect of the agreement, in order to lay a foundation for recovering thereon against the defendant; but as he has chosen to state a variety of circumstances, and alleged a number of matters of fact, it is absolutely necessary that he should make them all manifest, by legal evidence. That although many of these might have been omitted in the declaration, or the substance and legal effect thereof stated in general terms, yet as they are specially alleged, and particularly set forth, it is necessary they should be proved as laid; and that it is a sound rule of law, that the plaintiff, in such cases, is bound to prove every thing he states. That this is a rule of law founded in good sense, the object of which is certainty and convenience. The party plaintiff must certainly know what the substance of the special contract is, on which he founds his action, and he ought to state it fairly. He is not obliged to state it particularly in detail, but if he will undertake to do so, he must take care to do it correctly, and be able to yerify every matter he states by sufficient evidence. That there is no hardship in this rule ; but on the other hand, it would be productive of great uncertainty and mischief, if it should be allowed, for doctrine, that a plaintiff should recover on a .special count in assumpsit, where the proof given to maintain the same, is different from the case Stated therein, although it should appear to the court and jury, that the case stated, and the case proved, were intended to be the same. It would be allowing a loose and. inconyenient practice to obtain, where a correct and convenient practice might be established in its stead. The following authorities were cited to shew, that the distinction pointed out, and the doctrine insisted on, for the defendant, js fully warranted and settled by the determinations of the courts of law in England. Bull. N. P. 145. Doug. 665. 1 Morg. Ess. 334. 1 T. R. 134, 447. 2 Bl Rep. 1104. 1 Lofft’is Cilb, 389.
    The defendant’s counsel then proceeded to point out sundry variances between the matters alleged in the declaration, ancj the matters proved by evidence. The sum of £63..5s. was not proved to be due for rent in arrear : nor was there sufficient proof, that two years and five months rent was in arrear : nor that the plaintiff was lawfully seized, &a: nor that he let and demjsed the premises to the said O’Neal, at any certain annual rent. There was no sufficient proof, i]¡at a distress was levied. The paper writing produced under the dafondant’s hand does not-specify any particular sum, as alleged by the declaration. That if there had boon any agreement for rent, it must have been by parol, in which case i.t must be construed to be a lease at will, or a lease from year to year, by the ¡statute of frauds. 3 Burr. 1609. Esp. Dig. 460; so that a year’s rent .only, could be distrained for; and if more was distrained for the distress, it was illegal, and the plaintiff was a trespasser, ah initio. There was no proof that the defendant was requested to deliver the lumber at any particular time or place, or, indeed, at all. It was, therefore, strongly contended, that for this, the defendant was .entitled to claim a nonsuit, inasmuch as the plaintiff ought to have given the defendant notice where he should deliver the lumber, and Where he would require it to. be delivered, and no proof was given of any such demand or notice. 3 Bac. Abr. 710. Defendant was not bound to deliver ¿he lumber, till hastened by a request, as no time .was specified for delivery, by the promise.
    On the other side, the counsel for the plaintiff contended, that a more liberal doctrine should be allowed to preyail in this country : .and that in all cases, where the court and jury were satisfied, that, in fact, the evidence submitted to prove a case, did prove a similar pase to that stated in the declaration, although different in many circumstances, not essential to the merits of the cause, and that upon the whole, the plaintiff was entitled to recover ; he ought not to be nonsuited, but fire cause ought to go to the jury, and the jury ought to give a verdict for Ijirq, if they believed the evidence sufficient to prove the essential ground or cause of action : not. withstanding that the cage plated in the declaration may be erroneous, or defective in many respects, provided the same do not very ma» tcrially affect the real and essential merits of the case.
    
      
      
         See l-Lofft’s .Gilb.' 3S5. There is a characteristic difference between anagt s.umpsit in deed, and an assumpsit in law. The very contract must be set forth, where the assumpsit is in deed, and mistakes in quantities or sums, will be fatal; because the injury complained of,is the non-performance of the contract alleged. But where the law implies a contract, the gist of the inj ury is not the breach of a particular contract; and where the goods are delivered, or money paid, the quantity, &e. is not material. Where there has been a special agreement, the plaintiff is bound to declare upon it; and to prove the contract stated in his declaration expressly as laid, or he shall be nonsuited. 1 Esp. Dig. 138. 1 Ld. Raym. .735. 4 T. R. 314. IStr. 74. 6 T. R. 322. For the.special agreement being file gist of the action, must be stated truly, and the whole of it ought to appea^ on the record. 1 Esp. Dig. 138. 1 T, R. 447. Unless the agreement be in th» alternative. 1 Ésp. Dig.139. IT. R. 448. Doug. 15. Though the plaintiff has a count on a quantum meruit, as well as on a special agreement, yet if at the trial he proves a special agreement, hut different from that laid in the declaration, the plaintiff cannot recover on either count: not on the first, because of the variance; nor on the second, because there wasa special agreement. Bull. N. F. 139. 1 Esp. Dig. 139. 1 Str. 648. 6 T. H. 322. So if the promise alter ged be proved, yet if it appear to be made on a different consideration from that stated in the declaration; or if it be proved to have been made on that consideration and another, it will net support the declaration. Gvo. Fii^.79.
    
   By the court.

WjyriES, J.

I do not think it was necessary, that the declaration should contain the allegations which have not been proved, and which furnish the ground of the present motion. It was unnecessary to stqte these circumstances in the declaration. 1 am of opinion they are immaterial in this cause ; and notwiliistanding the case in Douglas, Bristow v. Wright, I cannot conce‘v’o it necessary, that immaterial averments in a declaration ought to be required to be proved.

Jambs and RotiimJjiler, for plaintiff. Falconer and Brevard, for defendant.

Where the matter charged partakes of the cause of action, and where the not proving it substantially, as charged, would be injurious to tlie defendant, by exposing him to the danger of a surprize ; in which evidence might be given, to prove a case so different from the case set forth in the declaration, that the declaration would not afford sufficient notice of the case intended to be proved at the trial; there I should hold it to be necessary, that the plaintiff should bo held to produce the necessary evidence to prove the case substantially as laid. The proof ought not to be substantially or totally different. But where the variance of the proof from the allegations of record, arc not substantial and material, but circumstantial and immaterial, I see no necessity to consider them of consequence. All such immaterial allegations I think may be rejected as surplusage. This a matter of practice, a creature of the court. The practice of the English courts, is, in this respect, extremely strict and technical. I see no occasion to adopt so rigid a practice here.

Nonsuit refused ; and verdict for the plaintiff.

The same grounds were taken afterwards, in this cause, by tl^ defendant’s counsel, in the Constitutional Court at Columbia, on motion for a new trial, and a new trial was granted. 
      
       If the plaintiff declares on a special agreement, in indebitatus assumpsit, and has also other general counts in his declarations, if he fails in proving the special agreement, he may go into evidence on the general counts. Bull N. P. 139. 1 Esp. Dig. 140. Doug. 628. But where the plaintiff declares on a 0011. tract, which is entire, the plaintiff must recover on the whole contract taken to. gether, and cannot either apportion, or recover on the common .counts. 1 Esp. Dig. 140. 6 T. R. 320. Salk. 65, The plaintiffs proofs must correspond with liis title as laid in the declaration. Salk, 283, 28. Bull. N. P. 129. 5 Esp. Rep. 33. On a count of insimul compntasset, the plaintiff is not obliged to prove the exac^ ¡5VUM Iqid, but may recover part of the stun demanded, Bull, N. P. 129.
     