In a petition for rehearing, appellant contends we have fallaciously and illogically differentiated between failure of proof and variance.
The complaint alleged a certain definite specific oral lease, to be reduced later to writing, and the evidence failed to reasonably show that the minds of the parties met on the terms of the lease alleged. The authorities clearly recognize this as failure of proof. (36 C. J., sec. 1335, p. 417; 36 C. J., sec. 1348, p. 427; 49 C. J., sec. 1204, p. 816.) *Page 490
In Locke v. Kennedy, 171 Mass. 204, 50 N.E. 531, the complaint alleged a three-year lease from November 13, 1893, at $27.78 per month. The evidence showed some tenancy, but failed to show a lease for three years from the date alleged. The court said:
"While the evidence did not show a variance, it did not prove the allegations of the count as they were laid. It is yet the rule that material descriptive averments must be proved as laid, and the allegations that the indenture bore date November 13, 1893, that the term was for three years from that date, and that the unpaid rent which the defendant owed was for seven months from that date, were descriptive averments, which identified the contract sued on, and which we think must be proved as laid to enable the plaintiff to recover upon the count as the declaration then stood. Stanwood v. Scovel, 4 Pick. 422; Whiting v. Withington, 3 Cush. 413; this objection to the plaintiff's recovery could easily have been removed by an amendment. Birnbaum v. Crownshield, 137 Mass. 177. The ruling excepted to, that there was not sufficient evidence to warrant a verdict for the plaintiff as his case was presented by the declaration, was well calculated to suggest to the plaintiff that he should ask leave to amend the count, and, as the case stood, was correct in law, so that the exceptions to it must be overruled."
No motion to amend the pleadings to conform to the proof was made herein.
Petition for rehearing denied.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur. *Page 491