
    William H. Delany, Resp’t, v. John R. Van Derveer, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 3, 1889.)
    
    Practice — 'Variance.
    The complaint alleged a purchase of stock for $400, payment of the-price, demand and refusal to deliver the stock. Plaintiffs testimony-showed that the price was $500. There was no proof of a tender of the-remaining $100, of any new agreement, or of an unconditional refusal. The court submitted the question whether the stock was sold for $400 or $500. Neld, error; that there was a fatal variance, and that the complaint, should have heen dismissed.
    The complaint alleged that the defendant agreed to deliver to the plaintiff ten shares of stock in the “ America Baking Powder Go.” for $400. That pursuant to this agreement the plaintiff paid the purchase price, $400, and thereafter demanded his stock, which the defendant refused to deliver, to his damage $400.
    The defendant pleaded that the purchase • price was $500 ; that. ' the $400 referred to by the plaintiff was a payment on account, and that the defendant was at all times willing to deliver the stock on receiving $100, the balance of the purchase money. Upon the-trial, the plaintiff upon cross-examination, testified that the defendant had sent for him and asked when the plaintiff would pay the balance. Folio 48. The following occurred in connection therewith:
    
      “ Q. What balance did he refer to then ? A. I paid him $400, and I suppose he wanted to know when I would pay the other hundred dollars.
    
      “ Q. What hundred dollars ? A. The balance of the $500.
    
      “ Q. What $500 ? A. The price of the stock. I agreed to give fifty dollars a share for it.”
    Upon the conclusion of the plaintiff’s evidence, the defendant-moved to dismiss the complaint on the ground that,, by the testimony of the plaintiff, it appears that the contract for the purchase of the stock was $500, and that the plaintiff not having paid that amount, but only $400, could not recover. The motion was denied and the defendant excepted.
    The court submitted to the jury, as a disputed questio nof fact, whether the stock was sold for $400 or for $500, and told them that if the sale was at $400, the stock has been paid for. The jury rendered a verdict in favor of the plaintiff for $400 and interest, and, from the judgment entered thereon, the defendant appeals.
    
      Chas. De Hart Brower, for app’lt; Geo. W. Gibbons, for resp’t.
   Per Curiam.

The plaintiff’s own evidence showed that the contract to purchase was for ten shares at fifty dollars a share, aggregating $500, and that the $400 paid was not in full, but on account. The plaintiff’s evidence fails to show that any specific time for the delivery of the stock was fixed, or that there was any unconditional refusal to deliver it

No new agreement was made by which the price was reduced to $400. No tender of the $100 was made, and nothing was proved which put the defendant in default. There was nothing on which the trial judge was authorized to submit to the jury the question whether $400 was not the contract price, because the plaintiff, aside from his complaint, admitted it was $500. No rescission of the contract was proved and none declared upon, nor was fraud or deceit alleged or proved.

The action was brought on the improper theory that $400 was the contract price, when it was, in fact, $500. The proofs entirely failed to prove the cause of action as alleged, and there was a fatal variance with the case alleged and the facts proved. It won’t do to allege one thing and prove another. The allegata and probata must agree. Bouvier’s Dict’y; Cumiskey v. Lewis, 15 N. Y. State Rep., 364.

If the contract had been for $400, the plaintiff, having paid this’ sum, would have been entitled to his stock as of course, and it. would have devolved upon the defendant to show some good, excuse for not delivering it But the purchase price was $500, and no active duty devolved upon the defendant in respect to the: delivery of the stock until the balance of $100 was paid or tendered, in which case it would have been his duty to have delivered' the stock or been liable to an action for the return of the consideration, or for damages for breach of contract

If the defendant had declared his inability to deliver the stock, no tender of the $100 would in that case have been necessary, for-it would then have become an idle ceremony. But the defendant, did not declare his inability to deliver. Excuses were given,, according to the plaintiff’s evidence, for^the delay in non-delivery,, but the plaintiff apparently acquiesced m these, for he could have: terminated them by a tender of the $100 if he had made it, accompanied by a demand for the stock. Upon the pleadings and proofs the complaint ought to have been dismissed, and for the-error of the court in refusing to dismiss the same the judgment must be reversed, and a new trial ordered, with costs to abide the event.

McAdam, Ch. J., and Nehrbas, J., concur.  