No general test can be given by which it can always be accurately determined whether a given allegation is formal or essentially descriptive. The question turns largely upon the circumstances of each case. The strict rules of common-law pleading have, however, been greatly relaxed in modern times, and an extreme particularity of proof is now often dispensed with, provided the opposite party is not surprised or prejudiced thereby. Thus, proof that the plaintiff jumped from a car will sustain an allegation that he fell from one; while a charge that he was injured by a "rocket" is sustained if it be shown that he was struck by a bomb.3 In defining matter of essential description we must first consider does the allegation narrow or limit the description of something which is necessary to the cause of action. Thus of contracts either parol or written it is said that all particulars of time, value, person, place, size and name are essentially descriptive, serving to identify the contract, and they must generally be precisely proved. So, too, the allegation of the capacity in which the plaintiff sues, or of his title, is usually descriptive and must be strictly proved. Proof of ownership must generally correspond precisely with the allegation." 1 See § 24. ville, etc. Co. v. Hurt (Ala., 1893), 13 2 Gulf, etc. Co. v. Johnson (Tex., S. Rep. 130); but an allegation that 1892), 19 S. W. Rep. 151. Colvin v. Peabody (Mass., 1892), 29 N. E. Rep. 59. For similar cases of immaterial variance, see Carroll V. Water Co., 5 Wash. St. 613; Bevens v. Barnett (Ark., 1893), 22 S. W. Rep. 160; Roe v. Cutter, 4 Wash. St. 611; Pennsylvania Co. v. Dolan, 32 N. E. Rep. 802; Chicago, etc. Co. v. Smith (Ind., 1893), 33 N. E Rep. 241; Parsons v. Hughes, 62 Hun 621; Paris, etc. Co. v. Greiner, 84 Tex. 443; 19 S. W. Rep. 564; Lake Shore Ry. Co. v. Hundt, 140 Ill. 525; Ashinan v. Flint, etc. Co., 90 Mich. 567; 51 N. W. Rep. 645; Norcross v. Weldon, 59 Vt. 50; Struthers v. Drexel, 7 S. Ct. 1293. Wanton negligence, when charged, must be proven strictly (Richmond, etc. Co. v. Farmer, 12 S. Rep. 86. Cf. Louis a horse "was driven at a furious rate" is mere surplusage and need not be proved. Robbins v. Diggins (Iowa, 1889), 43 N. W. Rep. 306. Proof that an injury was caused by a team will not sustain an allegation of injury by machinery. McPherson v. Bridge Co. (Oregon, 1890), 26 Pac. Rep. 560. 41 Greenl. on Ev., § 57. 5 Elting v. Dayton, 63 Hun, 629; Higman v. Hood, 3 Ind. App. 456; 29 N. E. Rep. 1141; Ternes v. Dunn, 7 Utah, 497; 27 Pac. Rep. 692; Brown v. Rouse, 93 Cal. 237; Weall v. King, 12 East, 452; Ferguson v. Harwood, 7 Cranch, 408, 413. Contra, Kidder v. Vandersloot, 114 Ill. 133. 61 Greenl. on Evid., § 57, citing Moises v. Thornton, 8 T. R. 303, 308. 7 Galveston, etc. Co. v. Becht (Tex., § 19. Formal allegations.- Regarding those allegations in a pleading which are formal and technical merely, as the allegation in trover that plaintiff lost the goods, or in assumpsit that he promised to pay for them what they were worth,' or the allegation in an indictment for homicide that death was caused by some particular weapon or means, it may be said that though by a general denial in a civil action, or by a plea of not guilty to the indictment, they are put directly in issue, they are not generally regarded as essentially descriptive and need not be precisely proved as alleged. In trover the substance of the issue is the conversion by the defendant, and this of course must be proved substantially as alleged. So in a trial for homicide, if the killing by the defendant be proved, the proof of the manner of the killing, so long as it agrees in substance with that alleged, is immaterial.1 All allegations essentially descriptive must be proved, no matter what their form, while allegations not material and having no bearing on the issue need not be proved, and may and should be regarded as surplusage, though alleged with extreme explicitness and formality. But allegations not essentially descriptive may be made so by their connection with those that are, and they must then be proved as alleged if they are not pleaded with a videlicet. Thus when the exact price of the goods is alleged in an action for a breach of warranty, it must be strictly proved unless alleged with a videlicet, when the form of the allegation would be that the sale was for a valuable consideration videlicet, to wit, for $100. It should 1893), 21 S. W. Rep. 971. Cf. Union Stock Yards v. Gillespie, 137 U. S. 411; Chicago, etc. Co. v. Rolvink, 31 Ill. App. 596. 1 Fairfax F. M. Co. v. Chambers (Md., 1893), 23 Atl. Rep. 1024; Mathews v. Tappan, 6 Mo. 276. 22 Russell on Crimes, p. 711; Turner v. State (Ala., 1893), 12 S. Rep. 54; Thomas v. Com. (Ky., 1893), 20 S. W. Rep. 226; Hernandez v. State (Tex., 1893), 22 S. W. Rep. 972. 3 51 Greenl. on Evid., § 60. The effect of this word as used in a pleading is to show that the pleader does not undertake to prove his allegations precisely. Stephen on Pleading, 309; 1 Chitty on Pleading, 261, 262, 348. "A 'viz.' serves to give additional particulars of time or piace or circumstances explanatory of previous statements made in general terms; it cannot render nugatory previous specific averments." Lewis * Young v. Black, 7 Cranch (U.S.), v. Hitchcock, 10 Fed. Rep. 7. 426; 1 Greenl. on Ev., § 59. 4 See § 23. 61 Greenl. on Evid., § 60, citing Arnfield v. Bate, 3 M. & S. 173. not be understood that a variance may be avoided, or exact proof of material allegations dispensed with, by the use of the word videlicet. In pleading unnecessary averments a party may sometimes, unless he plead with a videlicet, incur the burden of proving them precisely as laid.' 20. Allegations of value, quantity, time, place, etc.Among allegations which are often considered immaterial, and of which, therefore, strict proof is not required, are those of time, place, value, quantity and quality. So in an action to recover damages for negligence, or for an assault to the person, the details of the time and place of its occurrence are immaterial, except where, by the peculiar nature of the case, time and place are rendered essential." Averments of value, as, for example, of the amount of rent claimed to be due, or of the value of goods taken in trover, and generally of matter which is alleged solely in aggravation of damages, and which does not involve the plaintiff's right of action, need not be precisely proved. Sometimes an allegation of place may be material and require to be strictly proved. Thus, when the declaration in an action to recover damages for negligence shows that plaintiff was a passenger between stations A. and B., and the proof shows that he was a passenger from C. to D., between which stations A. and B. wero located, the variance will be fatal.9 11 Greenl. on Evid., § 60. 21 Greenl. on Evid., § 60, citing Grimwood v. Barrit, 6 T. R. 460; Brugnier v. United States, 1 Dak. 9; Twiss v. Baldwin, 9 Conn. 292; State v. Murphy, 55 Vt. 549; Panton v. Holland, 17 Johns. 92; Vowles v. Miller, 3 Taunt. 137; Gould on Pleadings, 58, secs. 35-41. 3 Halfin v. Winkleman, 18 S. W. Rep. 443; Ericksen v. Schuster, 44 Minn. 441; Lasater v. Van Hook, 77 Tex. 650; St. Louis, etc. Co. v. Evans, 78 id. 369; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270; Hudson v. Hudson (Ga., 1893), 16 S. E. Rep. 349; Devlin v. Boyd. 69 Hun, 328; James v. Work, 24 N. Y. S. 149; Russell v. Bradley, 47 Kan. 438; Drown v. Forrest, 63 Vt. 557; First Nat. Bank v. Stephenson, 82 Tex. 435: Holman v. Pleasant Grove City, 30 Pac. Rep. 72. 4 Brown v. Sullivan, 71 Tex. 470; St. Louis Railway Co. v. Turner, 1 Tex. Civ. App. 625; McCaslin v. Lake Shore R. R. Co., 93 Mich. 553; Georgia, etc. Co. v. Miller (Ga., 1893), 16 S. E. Rep. 939; Lake Shore, etc. Co. v. Hundt (Ill., 1892), 30 N. E. Rep. 458; Rockford v. Hollenbeck, 34 Ill. App. 40. 51 Greenl. on Evid., § 61. See notes 3 and 4, supru 7 Phettiplace v. N. Pac. Ry. Co. (Wis., 1893), 54 N. W. Rep. 1092. 8 Hutchins v. Adams, 3 Greenl. 174. Cf. Ross v. Malone (Ala., 1892), 12 S. Rcp. 182. "Wabash, etc. Co. v. Friedman 2 § 21. Proof of contracts.- A written contract, in cases not within the statute of frauds,' is not required to be proved unless it is set out in the pleadings. If a contract, whether oral or written, is pleaded, it must be substantially proved as alleged, particularly as to those portions by which an obligation is created, including all circumstances relating to consideration, time and mode of performance. Proof of an alternative or conditional contract will not support an allegation of one which is absolute; nor will proof of one that is absolute sustain an averment of one in the alternative.5 An allegation of an implied contract will be supported by proof of an express one, though a declaration alleging money had and received, it has been held, is not sustained by proof of a promise to pay money. 8 The consideration, with all attendant details, should be pleaded; and where this is done, the party will be held to prove the consideration strictly as it is alleged. Accordingly, proof of an agreement to pay a fixed and definite sum will not sustain an allegation of a contract to pay merely what is reasonable." (Ill., 1892), 30 N. E. Rep. 353. See, also, Montezuma v. Wilson (Ga., 1889), 9 S. E. Rep. 17; Whitney Mfg. Co. v. Richmond & D. R. Co. (S. C., 1893), 17 S. E. Rep. 147; Hood v. Pioneer M. & M. Co. (Ala., 1892), 11 S. Rep. 10. A defendant is entitled to judgment if he proves one of several pleas in bar, though he fails to prove the other. Leiter v. Day, 35 Ill. App. 248. 1 See post, §§ 261-270. 2 Hemminger v. West. Ass. Co. (Mich., 1893), 54 N. W. Rep. 949; Soaps v. Eiltberg, 42 Ill. App. 375; Hansen v. Hale, 44 id. 474; Hargrove v. Adcock, 111 N. C. 166. Le Baron v. United States, 4 Wall. 642. A writing is admissible to prove the contract alleged, though not alleged to be in writing. Fiedler Stone, 6 Cush. (Mass.) 340. 41 Greenl. on Evid., § 58; Saxton v. Johnson, 14 Johns. 418; Alexander v. Harris, 4 Cranch, 299; Baylies v. Fettyplace, 7 Mass. 325; Lower v. 5 Browning v. Berry, 107 N. C. 231. An allegation of a joint loan is not supported by proof of a loan to one. York v. Fortenbury, 15 Colo. 129. 6 Ashton v. Shepherd (Ind., 1890), 22 N. E. Rep. 98. 7 Clark v. Sherman, 5 Wash. St. 681. 8 Bromley v. Goff, 75 Me. 213; Benson v. Dean, 40 Minn. 455; Robinson Con. Coal Co. v. Johnson, 22 Pac. Rep. 459. 9 Cleaves v. Lord, 3 Gray (Mass.), 66, 71. Nor is an agreement to pay money sustained by proof of a promise to deliver goods. Titus v. Ash, 24 N. H. 319. A landlord cannot recover for goods furnished a tenant in a suit for the rent. Atkinson v. Cox (Ark., 1890), 16 S. W. Rep. 124. But where a contract of hiring at a stipulated rate is alleged, plaintiff If the consideration, though containing more than one promise, be entire, it must be proved as alleged. So a party cannot allege that he has agreed to do one thing and recover by proving that he has performed some act of a distinct character. Accordingly, proof that one agreed to finish a ship will not sustain an allegation that he promised to build one; nor will proof that he delivered spruce lumber sustain a contract to deliver pine. An allegation of a note payable without defalcation or discount is not sustained by proving one payable "without defalcation." But a plaintiff, though he cannot sue in tort and recover on contract, may recover for a wrong which is alleged and proved, though in the same action he sue on a contract which he fails to prove.3 § 22. Variance in the proof of sealed instruments.- According to the rules of common-law pleading, where a deed is pleaded according to its tenor - that is, by setting out an exact copy in full-every part so stated was regarded as essentially descriptive, and it was required to be literally proved in every particular. In the absence of a statutory power of amendment, a variance was fatal. But when a deed or other instrument is pleaded according to legal effect i. e., where the purport only is set out the same preciseness of proof is not required, and proof of a deed conforming in substance and legal effect with the allegation will suffice, though a verbal variance exists. When oyer of the deed, or its modern equivalent, the production of the deed or a copy of it in court, is claimed, the party has a right to a verbatim copy, though at this day, in consequence of the very liberal construction of the statutes of amendment, any discrepancy not going to the merits of the case would be disregarded. may recover the fair value of his services, though he fail to prove the rate alleged, if a promise to pay can be implied from the circumstances. Miller v. Eldridge, 126 Ind. 461. guson v. Harwood, 7 Cranch, 408, 413; 642. See post, Private writings," 11 Greenl. on Evid., § 68. 218; 1 Greenl. on Evid., § 68. 318. 5 Whitlock v. Ramsey, 2 Munf. 510; Crothers v. Acock, 43 Mo. App. Ankerstein v. Clarke, 4 T. R. 616. 6 See post, § 126; Goodbub v. Schee 1 Greenl. on Evid., § 69, citing Fer- ler, 3 Ind. App. 318; Glacier Mount |