have been wholly condemned, which, according to the criterion established by numerous cases, set forth a cause of action, although in an incomplete and imperfect manner. Some illustrations of this strict method of decision are given in the note.1 § 551. II. Redundant, immaterial, and irrelevant allegations; the mode of objecting to and correcting them. In a legal action all matter stated in addition to the allegations of issuable facts, and in an equitable action all such matter in addition to the averments of material facts affecting the remedy, is unnecessary, and therefore immaterial and redundant. Whenever, therefore, the 1 Scofield v. Whitelegge, 49 N. Y. 259, 261; Hathaway v. Quinby, 1 N. Y. S. C. 386; Doyle v. Phoenix Ins. Co., 44 Cal. 264, 268; Holmes v. Williams, 16 Minn. 164, 168. Scofield v. Whitelegge was an action to recover possession of a chattel. The complaint alleged that the defendant had become possessed of and wrongfully detained from the plaintiff a piano of the value of, &c., and demanded the usual judgment. The answer denied the possession of any property belonging to the plaintiff, denied the wrongful taking, and denied the plaintiff's ownership. The complaint was dismissed at the trial, on the ground that it stated no cause of action. The opinion of the New York Court of Appeals, by Folger J., after reciting the common-law rule in replevin, that the action could only be maintained by one who had the general or a special property in the chattel, that this property must have been averred in the declaration, that the action under the code takes exactly the place of the old replevin, and that the plaintiff in it must have a prop erty in the chattel, proceeds as follows (p. 261): "Nor is it less necessary now than then for the plaintiff to aver the facts which constitute his cause of action. He must allege the facts, and not the evidence; he must allege facts, and not conclusions of law. The plaintiff here alleges that the defendant wrongfully detains from him the chattel. If, indeed, this be true, then it must be that the plaintiff has a general or special property in the chattel, and the right of immediate possession. But unless he has that general or special property and right of immediate possession, it cannot be true that it is wrongfully detained from him. The last — the wrongful detention grows from the first, the property and right of possession. The last is the conclusion. The first is the fact upon which that conclusion is based; it is the fact which, in a pleading, must be alleged. Is not the statement of a conclusion of law, without a fact averred to support it, an immaterial statement?" This decision is certainly technical to the last degree when tested by the standard established in the codes and in other cases. The complaint was undoubtedly imperfect; but it set forth a cause of action, although in an incomplete manner. The learned judge concedes that the averment "the defendant wrongfully detains from the plaintiff" necessarily presupposes and implies a property and right of possession in the plaintiff. The only defect, therefore, consisted in an allegation of the evidence, or perhaps of the legal conclusion, instead of the issuable fact. The defendant was not misled; his answer shows that he understood the claim, and it raised all the issues upon which he relied. The complaint is, indeed, a striking illustration of a defective pleading, which should be corrected by motion, and not attacked by demurrer; and the opinion is a clear and convincing argument showing why such a motion ought to be granted; but it violates the liberal principle of construction, and returns to the common-law rule requiring a strict interpretation against the pleader. The facts and opinion in Hathaway v. Quinby, which is quite similar in its general character, and in Doyle v. Phoenix Ins. Co., may be found, supra, §§ 531, 535. issuable facts constituting a legal cause of action, or the material facts upon which the right to equitable relief is wholly or partially based, are pleaded, all the details of probative matter by which these facts are to be established, and all the conclusions of law inferred therefrom, are plainly embraced within this description. It would not be strictly correct to say that statements of evidence or of legal conclusions are, under all circumstances, redundant. If a complaint or petition should, in violation of the principles established by the reformed procedure, allege the evidence of some issuable or material fact instead of the fact itself, or should state a conclusion of law in place of the proper fact or facts which support it, these averments would be irregular, imperfect, insufficient, and liable to correction by a motion; but they might not be necessarily redundant. If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material. It is self-evident, however, that if the essential doctrines of pleading are complied with, and the proper facts constituting the cause of action, or affecting the equitable relief, are all set forth, then any detail of evidence or any conclusion of law is necessarily surplusage, and redundant. An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action. Every irrelevant allegation is immaterial and redundant: but the converse of this proposition is not true; every immaterial or redundant allegation is not irrelevant. This general description can only be explained and illustrated by an examination of individual cases, of which a few have been collected in the note as examples.1 § 552. The rule is established by the unanimous decisions of 1 Bowman v. Sheldon, 5 Sandf. 657, 660; Fasnacht v. Stehn, 53 Barb. 650; Hunter v. Powell, 15 How. Pr. 221; Fabricotti v. Launitz, 3 Sandf. 743. See Bank v. Kitching, 7 Bosw. 664; 11 Abb. Pr. 435; Cahill v. Palmer, 17 Abb. Pr. 196; Decker v. Mathews, 12 N. Y. 313; Gould v. Williams, 9 How. Pr. 51; St. John v. Griffith, 1 Abb. Pr. 39; O'Connor v. Koch, 56 Mo. 253; Clague v. Hodgson, 16 Minn. 329, 334, 335; King v. Enterprise Ins. Co., 45 Ind. 43, 55; Hynds v. Hays, 25 Ind. 31; Booher v. Goldsborough, 44 Ind. 490, 498, 499 (duplicity); Loomis v. Youle, 1 Minn. 175; Clark v. Harwood, 8 How. Pr. 470; Edgerton v. Smith, 3 Duer, 614; Sellar v. Sage, 12 How. Pr. 531; 13 How. Pr. 230; Lee v. Elias, 3 Sandf. 736; Lamoreux v. Atlant. Mut. Ins. Co., 3 Duer, 680. the courts, as well as by the provision found in the codes, that the proper and only method of objecting to and correcting redundant, immaterial, or irrelevant allegations in a pleading, is a motion to strike out the unnecessary matter, and not a demurrer, nor an exclusion of evidence at the trial. The new procedure thus furnishes, by means of these motions in cases of insufficiency, redundancy, or irrelevancy, a speedy and certain mode of enforcing the fundamental doctrines of pleading what it has established, and of causing the complaints or petitions and answers to present single, clear, and well-defined issues. At the same time it prevents a sacrifice of substance to form, and a decision of controversies upon technical points not involving the merits, by requiring these objections to be taken before the trial, and by regarding them as waived if the prescribed mode of remedy is not resorted to. The courts have it in their power, by encouraging these classes of motions, and by treating them as highly remedial and important, to shape the pleading into an harmonious and consistent system, constructed upon the few natural and philosophical principles which were adopted as its foundation; or they may, on the other hand, by discouraging a resort to these corrective measures, and by treating them as idle, unnecessary, or vexatious, suffer those principles to become forgotten, and to be finally abandoned, and may, thereby, lose all the benefits which were designed, and which could have been obtained from the reform. § 553. III. The doctrine that the cause of action or defence proved must correspond with the one alleged. The codes describe three grades of disagreement between the proofs at the trial and the allegations in the pleadings to which such proofs are directed: namely, (1) An immaterial variance, where the difference is so slight and unimportant that the adverse party is not misled thereby, and in which case the court will order an immediate amendment without costs, or will treat the pleading as though amended, permitting the evidence to be received and considered; (2) A material variance, where although the proof has some relation to and connection with the allegation, yet the difference is so substantial that the adverse party is misled by the averment, 30 N. Y. 655; Simmons v. Eldridge, 29 How. Pr. 309; 19 Abb. Pr. 296; Cahill v. Palmer, 17 Abb. Pr. 196. 1 Loomis v. Youle, 1 Minn. 175; O'Connor v. Koch, 56 Mo. 253; King v. Enterprise Ins. Co., 45 Ind. 43, 55; Hynds v. Hays, 25 Ind. 31; Smith v. Countryman, and would be prejudiced on the merits, in which case the court may permit the pleading to be amended upon terms; (3) A complete failure of proof, where the proofs do not simply fail to conform with the allegation in some particular or particulars, but in its entire scope and meaning, or, in other words, the proof establishes something wholly different from the allegations. In this case no amendment is permitted, but the cause of action or defence is dismissed or overruled. In these statutory provisions the doctrine that the proofs must correspond with the allegations is, in a somewhat modified form, united with the subject of amendment, by which the minor grades of the variance may be obviated. In the present subdivision I shall consider only the former of these two topics, and shall discuss the scope and effect of the general rule, that the cause of action, or the defence as proved, must correspond with that averred in the pleading. § 554. The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defence relied upon by the pleader, and may thus have an opportunity of meeting and defeating it if possible at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial. The requirement, therefore, that the cause of action or the affirmative defence must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading. It frequently happens, however, and from the very nature of the case it must happen, that the facts as proved do not exactly agree with those alleged. To determine the effect of such a disagreement we must recur to the reason and object of the rule, and they furnish a certain and equitable test. If the difference is so slight that the adverse party has not been misled, but, in preparing to meet and contest the case as alleged, he is fully prepared to meet and oppose the one to be actually proved, then no effect whatever is produced by the variance; to impose any loss or penalty on the pleader would be arbitrary and technical. In the second place, the difference, while it does not extend to the entire cause 1 See these provisions quoted supra, § 435. of action or defence, may be so great in respect to some of its particular material facts as to have misled the adverse party, so that his preparation in connection with that particular is not adapted to the proofs which are produced. In such circumstances an amendment is proper because the variance is partial, but it is obviously equitable that terms should be imposed. Finally, if the divergence is total, that is, if it extends to such an important fact, or group of facts, that the cause of action or defence as proved would be another than that set up in the pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defence is the only equitable result. It should be noticed, that, in order to constitute this total failure of proof, it is not necessary for the discrepancy to include and affect each one of the averments. A cause of action as stated on the pleadings might consist, say, of five distinct issuable or material facts; on the trial four of these might be proved as laid, while one so entirely different might be substituted in place of the fifth that the cause of action would be wholly changed in its essential nature. § 555. The conclusions reached in the foregoing analysis, and the reasons which support them, are fully sustained by the decided cases which constantly discriminate between the immaterial variance which is disregarded, and the total failure of proof which is fatal to the cause of action or defence. It is of course impossible to give any comprehensive formula which shall determine these two conditions; the scope and operation of the doctrine can only be learned from the decisions which have applied it, of which a few are selected as illustrations. In the following instances the variance was held to be immaterial: In an action upon a written contract which was properly set out in the complaint except that one material stipulation was omitted, but a correct copy of it had been served upon the defendant's attorney. In an action against a city for injuries done to the plaintiff's house and grounds by the unlawful construction of sewers, sidewalks, &c., it was held that, if the manner of constructing the works was unlawful, the failure to allege negligence in the complaint was not material, and might be either disregarded or amended at any stage of the proceeding; 2 in an action upon a 1 Fisk v. Tank, 12 Wisc. 276, 301. 377, 378. "The alleged variance did not change the gravamen of the action." |