On the trial of this case to the court, the plaintiff in the first place offered in evidence the original guaranty executed by the defendant, and which is set out in full in the declaration. To this the defendant objected, on the ground that there was a fatal variance between it and the declaration. The particular ground of variance is not pointed out, but on the hearing before us it was claimed to be, that the debt specified in the instrument was payable in three' years, while the debt alleged to be secured by the mortgage was payable in three years or whenever there should be a failure to pay the interest semi-annually. The court below excluded the evidence. We think this decision was erroneous.
The regular course of pleading requires that the plaintiff should in his declaration state his case; that is,- he ■ should *168allege the facts on which he claims a legal right to recover. The defendant may then demur, that is, deny the legal sufficiency of these facts, or deny the facts themselves, or oonfess and avoid them. Those are distinct grounds of defense, and ought not to be mingled or confounded. If he denies the facts alleged in the declaration, he waives for the time being the question of their sufficiency in law. He can not on the trial of this issue take the ground that the facts if true constitute no ground of action. If he wishes to take that ground he should demur, or reserve to himself the right to do it by motion in arrest or writ of error. The simple question to be tried on the general issue is, whether the material facts alleged in the declaration are true. By “ material” in this connection is not meant of legal sufficiency, but whether they constitute a part of the plaintiff’s case, as he presents it. Whether that case will sustain in law an action or not, can not be considered on a trial to the jury. If a plaintiff, either through his own folly, or the ignorance of his counsel, should sue a defendant in slander for calling him a rascal, and if the defendant, unwilling to admit that he has been guilty even of an insult, should deny the speaking of the words, the court would be bound to take a verdict of the jury on that question, and could not exclude the evidence as constituting no ground of action. If the jury should find for the plaintiff, the defendant could then render the verdict ineffectual by a motion”in arrest or a writ of error. Any other course would mar the logical symmetry of common law pleadings. If it should be asked, can a plaintiff prove any fact that he sees fit to allege ? We answer, clearly not. The facts which he has a right to prove must be pertinent to his case. Matters that are impertinent or mere surplusage, he will have no right to prove although alleged. If the plaintiff should aver that he was a native of a particular place, or fifty years old, or a white man, or that the defendant was a foreigner, or a colored man, or a burglar, he would have no right to prove these allegations, because they could not under any supposable circumstances add anything to any case which he might present. If such averments are scandalous, the .court would on motion order *169them to be stricken from the declaration. If they are merely impertinent and immaterial, the court would on objection made or of its own accord refuse to hear the evidence to prove them, as tending to mislead the jury, and taking up the time of the court for no valuable purpose. In the present case there was no variance between the evidence and the allegations in the declaration. It corresponded exactly with that part of it to support which it was offered. The real objection, if there was any, was not to the proof, but to the plaintiff’s case as proved. The defendant claims that the evidence shows that the plaintiff took a mortgage, different from that which he guaranteed, and that therefore he, especially as he was a surety, was not bound by the guaranty. If that was so, it is apparent on the face of the declaration, and the objection should have been taken, not' to the evidence, but either by demurrer, or, as the case was tried to the court, by objecting to a judgment in favor of the plaintiff on the facts alleged and proved.
The rule that the plaintiff may on the general issue prove all the material allegations contained in the declaration, and that if these are insufficient in law to sustain the case the objection must be taken by demurrer or some similar mode, and not by objection to the evidence, is fully sustained by the authorities. 1 Swift Dig., 737; 1 Greenl. Ev., § 51. In Canterbury v. Bennett, 22 Conn., 623, the defendant, on a trial upon the general issue, asked the superior court to charge the jury that if all the facts set forth in the declaration should be found by them to be true, they constituted in law no reason why the plaintiff should recover, and that their verdict must be for the defendant. But the court refused so to chai-ge, and this court refused to grant a new trial, upon the ground that the proper mode of taking advantage of such a defect in the declaration, is by a demurrer, a motion in arrest or a writ of error. If the court could not direct the jury to disregard the evidence on the ground that it would not constitute a cause of action, it is clear that it could not exclude the evidence for the same cause.
No case has been cited which when carefully scrutinized would lead to a different result. We have been referred to *170the case of Bulkley v. Landon, 2 Conn., 404, and 3 Conn., 76. But an examination of that case will show that no such point was decided. The defendants had given to the plaintiffs an instrument of this form:—“In consideration of your having endorsed the under-mentioned notes drawn by D. T. in your favor, we hereby hold ourselves accóuntable to you for them in the same manner as though said notes had been drawn by us.” The plaintiffs in the first place brought an action alleging that the defendants, in consideration that the plaintiffs would indorse the note, promised, &c., and then offered the instrument to prove this allegation. But the court held that the evidence ought to be excluded for the manifest variance. 2 Conn., 404. On a new trial of the same case the plaintiffs amended the declaration, setting out the instrument, and alleging that the indorsements were made at the request of the defendants. The plaintiffs offered the instrument in evidence and it was excluded. The note of the case and the opinion of Hosmer, J. show the true ground on which it was excluded. The reporter’s note is, “ Held that such writing was not admissible to prove that such indorsements were made at the request of the defendants or for their benefit.” The judge says, p. 31:—“ The writing conduced' to prove none of the facts for which it was offered. The position most insisted on by the plaintiffs is this, that if they proved the delivery of the guaranty at the time when the notes were indorsed, the writing would be evidence of a request made for that purpose by the defendants. So far from evincing a request made to the plaintiffs to indorse the notes, it expressly purports to have been given in consideration of a precedent indorsement.” The whole history of the case, which was litigated with great pertinacity, shqws that the defendants had no motive for objecting to the evidence, on the ground that it did not prove the allegation that the defendants made the indorsements, and that they did not object on that ground. The mere proof of that fact would have been of no avail to the plaintiffs and no detriment to the defendants. It was necessary for the plaintiffs to prove further that the indorsements were made at the request of the defendants. Of this they had no proof but *171the writing itself, and of course it was to the admission of it for this purpose that the defendants objected. This court is never considered as deciding any points but those which are distinctly raised. ‘
Although the plaintiff is entitled to a new trial for the rejection of the testimony, he does not claim it if the court are satisfied from what appears in the ease that it would be of no avail to him. We are not satisfied that this would be the result. We are not clear that if the objection made by the defendant could have been properly taken, it would have prevailed. Tliere are several expressions in the instrument given by the defendant, from which it may pei’haps be inferred that it was drawn up with reference to the mortgage in question, as a document already prepared and agreed to by the defendant.
It speaks of certain charges and liabilities “ which are agreed to be paid in and by said mortgage,” of costs and charges “ agreed to be paid in and by said mortgage,” and of costs and expenses in the collection of the debt“ as agreed in and by said mortgage to be paid.” If then the guaranty was drawn up with reference, and if it refers in terms, to an existing writing, which is to be executed as a mortgage, the two ought to be construed together. There is no irreconcilable discrepancy between them. One speaks of the debt as payable in three years with interest semi-annually. The other of a debt payable in three years with the interest payable semiannually, with the right to foreclose the mortgage, in the same manner as if the principal had been made payable, on a failure to pay the interest. Both speak of the debt as being in terms payable in three years. If the two instruments are to be construed together we see no objection to the proceedings on the part of the plaintiff.
The plaintiff offered in connection with the guaranty parol evidence to show that the defendant requested the plaintiff to institute proceedings for the foreclosure of the mortgage, and that the plaintiff complied with this request. This evidence was objected to and the cpurt excluded it.
We do not consider it necessary to examine the question *172whether this evidence was properly excluded, taking the declaration as it stands. But we think that the declaration at all events could be so amended as to make this evidence admissible. We assent fully to the doctrine, that if a man guarantees the debt of a third person payable at a particular time, a change in the time of payment, whether for a longer or shorter period, made by the debtor and creditor, without the consent of the guarantor, would discharge the guaranty. But it could not be tolerated for a moment that if the change was made with the full knowledge and consent of the guarantor, he could take advantage of it to avoid his contract. The' evidence offered by the plaintiff tended- to show that the defendant assented to the mortgage that was in fact given, as the one which was to be given, and not only so, but that he induced the plaintiff to pursue measures and incur expenses, on the ground that it was such a mortgage, which he might not otherwise have done. Surely the doctrines of waiver and estoppel are broad enough to cover such a state of facts as this. If the facts of such assent and of such request should be alleged in the declaration, we do not see how the evidence offered could be rejected. We see no reason therefore why the plaintiff should not have another opportunity to maintain his case if he can.
We therefore advise a new trial.
In this opinion the other judges concurred; except Park, J., who dissented.