On Rehearing.
Sherwood, C. J.3 _variance: failure of proof. We discover no reason for departing from the conclusion reached in the original opinion. — that plaintiff having declared upon one cause of action could not recover upon another. Our statute (2 W. S., p. 1033, § l),it is true, provides that “No variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. "When it shall be alleged that a party has been so misled, that fact shall be. proved to the satisfaction of the court by affidavit, showing in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just.” And it has been ruled that an affidavit of having been misled was the only statutory test of such fact. Turner v. Railroad, 51 Mo. 501, and cases cited. But that statute has reference to mere discrepancies between the issues raised by the pleadings and the evidence offered in support of such issues, and not to cases where the substance of the issue, so to speak, has no support in the testimony adduced. The correctness of this view finds ample confirmation in the subsequent provisions of the statute relating to new trials, where it is provided 'that, “ Where the allegation of the cause of action or *518defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning,it shall not be deemed a case of variance, but a failure of proof.” 2 W. S., p. 1058, § 1. This section was passed upon by this court at an early day. Beck v. Ferrara, 19 Mo. 30. It was held that when the petition stated that the defendant was indebted to the plaintiff for stall No. 20, in the North Market, which was purchased by the plaintiff' from a third party for defendant at his special instance and request, and the proof was that the plaintiff bought the stall for himself, and afterward sold it to the defendant, an entire “failure of proof” had occurred and not a mere “variance.”
It is obvious from these statutory provisions and their construction as just announced, that there is a wide margin of difference between a cáse where there exists a lack of correspondence between the allegation of the cause of action and the proof in “some particular .or particulars only,” and. one where the allegation is “unproved” “in its entire scope and meaning.” In the former case, the failure of the party complaining of any discrepancy between allegation and proof to file his statutory affidavit is fatal to his case, so far as concerns any such discrepancy. In the latter case the failure to file such an affidavit can have no such effect, for the simple reason that no such affidavit is required by the statute when there is an entire failure of proof. The distinction made by the statute between-the two classes of cases is so palpable as to render any extended discussion unnecessary. Following and adhering to the ruling in Buffington’s case, 64 Mo. 246, we must continue to hold that a recovery based upon a cause of action not stated cannot be permitted to stand. Our code, with all its comprehensive liberality, will not admit a plaintiff to sue for a horse and recover a cow; no more will it admit evidence of a defect in the track of a railroad to be the basis of such a recovery as the plaintiff seeks.to have us sanction and affirm. We are willing to go the *519full length, of the statute respecting variances, but we are certainly unwilling to go to the extreme of saying that issues may be raised by the evidence and the instructions, as well as by the legitimate method, the pleadings'.
As this cause was tried in obvious disregard of the principles here announced, a reversal of the judgment must occur, and since this is so,-it. may be well to remark that in. accordance with our former adjudications, Devitt v. Railroad, 50 Mo. 302; Porter v. H. & St. Joe R. R., ante, p. 66; Rains v. St. L., I. M. & S. R. R., ante, p. 164, and McGowan v. St. L., I. M. & S. R. R., 61 Mo. 529, the fourth instruction for the plaintiff should have been refused; and the thirteenth instruction asked by the defendant should have been given, if the issue respecting the defective frog had been raised by the pleadings. Motion for rehearing overruled.
All concur, except Norton and Napton, JJ., who dissent.