dissenting: The question presented is as to whether there was a material variance between the allegations and proof, which prevented a recovery upon the proof offered in the absence of an amendment to the complaint, which was not asked. I have examined the case with care, impressed with the conviction that the merits are with the plaintiff. Nevertheless, I am impelled to conclude that there was such a variance as prevented a recovery upon the complaint in its present form. The allegations of the complaint are: That on January 15, 1903, W. L. Brown was agent of the defendant company in Greenville, N. C.; that on the date mentioned the defendant, through said agent, issued its policy to the Gorman-Wright Co., insuring certain tobacco contained in a building in Greenville, occupied as a tobacco prizery; that the lot on which the prizery was situated and the machinery in the prizery was owned by J. N. and P. H. Gorman; that J. N. Gorman was the secretary and general manager of the Gorman-Wright Co.; that on April 9, 1903, J. N. Gorman notified said agent to transfer said policy from the tobacco to the machinery in said prizery, which machinery belonged to the partnership of J. N. and P. H. Gorman; that said machinery was worth $4,000; that said agent was authorized to make said transfer, and that J. N. Gorman had frequently had similar transfers made by said agent; that in July, 1903, the said prizery, tobacco and machinery were destroyed by fire; that proof of loss was filed with the defendant for the payment of said policy of $1,500, which policy, on account of said transfer, covered said machinery; that on November 25, 1903, the Gorman-Wright Co., and J. N. and P. H. Gorman transferred all their interest in said policy to the plaintiff; that the defendant is indebted to the plaintiff in the sum of $1,500, being 75 per cent, of the value of said machinery in excess of this sum. Section 8 of the complaint is in these words: “That proof of loss was promptly made out *498and submitted to tbe defendant company for tbe payment of said policy of $1,500.00, wbicb policy, as plaintiff is advised by counsel, on account of said transfer, covered said machinery in said prizehouse, but defendant failed and refused to pay said policy or to adjust tbe loss thereon, claiming that it was not liable in any amount therefor.” Section 10 is as follows: “That the defendant is justly indebted to the plaintiff in the sum of $1,500.00, 15 per cent, of the value of said machinery being in excess of this sum.”
Nowhere in the complaint is the value of the tobacco stated or any allegation made of damage sustained by plaintiff on account of its loss. The only allegation whatever of any -loss is on account of the machinery. It was admitted upon argument and it is virtually admitted in plaintiff’s brief that the-' proof failed to show that the policy had ever been transferred from the tobacco to the machinery. The plaintiff now contends that notwithstanding that defect in the proof, he is entitled to recover for the loss of the tobacco which was covered by the policy. This is not a case where the policy covers all the property destroyed. It did not cover the tobacco and machinery ■ both. It covered one only and the plaintiff thought it was the machinery and not the tobacco. So the complaint is framed with the idea and purpose to exclude the tobacco and include the machinery within the protection of the policy. Having failed to show that the policy covered the machinery, how can plaintiff recover for loss of the tobacco upon a complaint which completely negatives the idea that the tobacco was insured by the policy at the time of the fire ? The doctrine of aider in pleading cannot apply here. The denials in the answer raise issues as to the transfer of the policy from the tobacco to the machinery, and. as to the assignment to plaintiff. The fact that the answer denies the transfer of the policy from the tobacco to the machinery will not permit ’the plaintiff to recover for the tobacco. It is a simple denial and not a statement of the facts. Even if it *499recited tbe facts, the plaintiff will not be allowed to abandon the averments in the complaint and recover upon a collateral statement of facts set out in the answer. Grant v. Burgwyn, 88 N. C., 95. The proper course was to ask leave to amend. Rand v. Bank, 77 N. C., 152; Willis v. Branch, 94 N. C., 142. In this latter case it is said: “A variance arises when the proofs do not sustain the cause of action alleged in the complaint. If it is immaterial, it will be disregarded; if material and misleading the court may in its discretion allow an amendment.” Issues arise on the pleadings. They do not arise on the proofs. Therefore the rule that allegata et pro-data must correspond obtains under The Code, the same as under the old system. The only difference is that a new rule has been introduced for determining what a variance is and its consequences. Pomeroy on Remedies, sec. 553. An immaterial variance is one which is so slight and unimportant that the adverse party could not reasonably be misled by it. The court may then order an amendment or disregard the variance and proceed without amendment. When the variance is substantial, such that the adverse party may have been misled by the averments, if the proof bears some apparent relation to the averments, an amendment may be allowed. Carpenter v. Huffsteller, 87 N. C., 278. But the amendment is essential, for proof without allegation is as ineffective as allegation without proof. McLaurin v. Cronly, 90 N. C., 50; McKee v. Lineberger, 69 N. C., 217. In Shelton v. Davis, 69 N. C., 324, Chief Justice Pearson said: “The idea of giving the plaintiff judgment upon a state of facts .not alleged in the complaint and entirely inconsistent with it, whatever may be said in regard to the progress of the age and the liberal and enlarged views of C. C. P., is a proposition which no member of this court can for a moment entertain.” In this case the complaint practically avers that the machinery was insured and the tobacco was not. The proof shows that *500tbe tobacco was insured and the machinery was not. The suit is brought to recover for the machinery. The statement of the matter is sufficient to satisfy me that the court below committed no error.