dissenting. The declaration in this ease in each count charged that the plaintiff was a passenger on the defendant’s road, to be carried from Kirksville to Glenwood Junction; the averment being, specifically, that the said plaintiff at said Kirksville then became and was a passenger in a certain train, etc., and was being carried from said Kirks-ville to said Glenwood Junction. The evidence was that the plaintiff was riding on a ticket which read, “ from Hoberly to Ottumwa;” that Kirksville lies between Moberlv and Ottumwa, and Glenwood Junction is between Kirksville and Ottumwa. The' question arises whether there was a variance between the allegation of the declaration and the proof. Such a variance as is insisted on here must be pointed out and insisted upon at the time of the trial, or advantage can not thereafter be taken of it. That was done in this case. Where a party is brought into court upon a suit calling upon him to pay the sum of $30,000, an amount which is a fortune to most men, and which but few people ever accumulate, it is the right of the defendant, as it is in every case, to have the declaration clearly set forth the grounds upon which such recovery is asked. This seems but reasonable, and as I am entirely confident, is in accordance with well established rules of law.
In Chitty’s Pleadings, 16 Am. Ed., Vol. 1, p. 305, speaking of declaration in actions of assumpsit, it is said: “ Great accuracy is required in the statement of the consideration, which in an action of assumpsit, forms the basis of a contract, and if any error appears to have been made in describing it, the consequence will be that the whole contract is misdescribed.”
The reason for this is obvious, as all contracts rest upon a consideration, a promise without consideration being a mere nudum pactum, upon which no action can be based.
In actions on the case it frequently happens that the suit arises from some duty of the defendant, which it is said he failed to perform. In such case the duty occupies the same relation to the suit that the consideration does in an action of assumpsit. In Chitty’s Pleadings, 16 Am. Ed., Vol. 1, p. 398, it is said: “In an action on the case founded on an express
or implied contract as against an attorney, agent, carrier, innkeeper or other bailee, for negligence, etc., the declaration must correctly state the contract, or the particular duty or consideration from which the liability results, and on which it is founded, and the variance in the description of a contract, though in an action ex delicto, may be as fatal as in an action in form ex contractu. The declaration in such case usually begins with a statement of the particular profession or situation of the defendant and his retainer, and consequent duty or liability. The declaration will be defective if it does not show that by express contract, or by implication of law in respect to the defendant’s particular character or situation, etc., stated by the plaintiff, the defendant was bound to do, or omit the act, in reference to which he is charged.” And in the same volume of Pleadings, upon page 400, it is said: “It is also a rule that if a necessary inducement of the plaintiff’s right, etc., even in actions for torts, relate to and describe, and be founded on a matter of contract, it is necessary to be strictly correct in stating such contract, it being matter of description. Thus, even in a case against a carrier, if the termini of the journey which was to be undertaken be misstated, the variance will be fatal. Here the allegation in the inducement relates to matter of description.”
In Stephens on Pleading, at page 124 of the Appendix, it is said, after quoting a large number of authorities on the subject of variance: “It may be collected from the above authorities that whenever a contract is described, a variance will be equally fatal whether the action be upon the contract itself or upon some collateral matter, or in form ex delicto.”
The cases which sustain the rule are numerous. Among them are Weall v. King, 12 East, 452, and McConnel v. Kibbe, 33 Ill. 475. It is imperative, in such an action as this, that the declaration show a duty. Max v. Roberts, 12 East, 89.
The duty arises from the relation of the parties, the contract which they entered into, and it is the right of the defendant to be informed by the declaration or by a bill of particulars from what it is that the duty is said to have arisen. In actions such as this, in the great majority of instances, it being established that the plaintiff wa^ a passenger, and was injured by an accident upon the defendant’s road, there is no question in the case save that of damages. Allegations, therefore, going to show that the plaintiff occupied the relation of a passenger, are most vital, and the defendant has a right to insist that before going to trial he is informed how it was that such relations came about. In effect the defendant is said to have undertaken to safely carry the plaintiff. The defendant has, therefore, a right to know what it was that the plaintiff did, what payment, promise or undertaking he made, by which this promise on the part of the plaintiff was created, and the consequent duty imposed. Had the plaintiff in this case not stated where he became, or at what place and between what points he was, a passenger, the defendant would have been entitled to a bill of particulars giving such information. But the plaintiff having stated where he became a passenger, and between what points he was a passenger, the defendant had a right to rely thereon, and prepare his case for trial accordingly. The variance, therefore, is not concerning an immaterial matter, but in relation to one vital to the issue in the case, for at the very threshhold of the trial the question necessarily arises whether the defendant ever, for hire, as is charged, and as must be proved, was a carrier of the plaintiff upon its railway. In other words, was the plaintiff a passenger, toward whom, by reason of his having paid, or undertaken to pay, a certain remuneration, the defendant owed a duty.
It therefore seems to me that there was a fatal variance between the plaintiff’s declaration and evidence, a variance to which particular attention was called upon the trial and which he could at once have removed by amendment; and that the instruction of the court that “if it appear from the evidence that the plaintiff was a passenger on the train of the defendant between the points mentioned, traveling from a point south of said Kirksville to a point beyond Glen wood J unction, then the averment in the plaintiff’s declaration is sufficiently made out,” should not have been given. I am of the opinion that the judgment in this case should be reversed, and the cause remanded for a new trial.