I agree with the majority of the court that the verbal agreement alleged in the second defense, standing by itself, may be construed as expressing a condition subsequent; but, in the light of the facts proved, it is susceptible of a different construction. *Page 186
The agreement as proved and found by the trial court clearly expresses a condition precedent. The finding is this: Tupper, on behalf of the plaintiff, agreed with Feeley to release and discharge him from the obligations of his bond, in consideration of his transfer to the plaintiff, by bill of sale and delivery, of certain property valued at $1,700. The property was so transferred and delivered. The agreement on the part of Feeley was executed, and the bond in the possession of the plaintiff became inoperative. Subsequently Feeley verbally agreed with Tupper to permit the bond to stand, if the plaintiff would let Shepard go on in business as before, and would transfer to Shepard the property Feeley had transferred to the plaintiff. The plaintiff did not transfer the property to Shepard as agreed. I think it clear that the condition to transfer the property to Shepard was a condition precedent, and that the promise of Feeley to let the bond stand could not become operative until that condition was performed. Upon the facts as found the judgment of the court is correct.
The real difficulty lies in the claim that the promise to transfer the property to Shepard is not specifically alleged in the second defense in connection with the promise to let Shepard go on in business as before; and therefore the fact is outside the issue and cannot be relied upon in support of the judgment. An apparent difference may fairly be claimed between the fact alleged and the fact proved. If this variance is such that the fact proved is so wholly independent of the fact alleged that it cannot be treated as in any way contained in the pleading, nor as evidential of any allegation in the pleading, then the case comes within the rule stated in Greenthal v. Lincoln, Seyms Co., 67 Conn. 372, 379, and the fact found cannot be used to support the judgment. But if the fact found is substantially related to the fact alleged, or is evidential of such fact, and serves merely to enlarge, explain or prove what has been stated, although defectively, then the failure to demur and to object to evidence of this fact, brings the case within the rule referred to in Plumb v. Curtis,66 Conn. 154, 165, and the fact found may be used in support of the judgment. I think the variance claimed is of the *Page 187 latter nature. The allegation is that the bond was redelivered upon the express condition, orally agreed, that Shepard should be continued in the same business relation to the plaintiff as theretofore: the proof is that the former business relation involved the ownership by Shepard of some $1,700 worth of property, most of which had been sold by the plaintiff to him and had been transferred by him to Feeley as security for the bond, and transferred by Feeley with the consent of Shepard to the plaintiff in satisfaction of the bond; and the oral agreement as proved directly stipulates for the transfer of this property by the plaintiff to Shepard, in order to place him in the same business relation as before. The redelivered bond could not take effect until this transfer should be made. I think this proof is in support and explanation of the allegation made, viz, that the bond was redelivered upon an oral agreement that it should not become operative until Shepard was put in his former business relation to the plaintiff. If the statement of this defense was defective, the plaintiff should have demurred; not having demurred he should have objected to the evidence, if he intended to rely on the claim of variance. In the absence of demurrer or objection, the trial court properly found that the bond was redelivered upon a condition precedent, substantially as alleged. This fact supports the judgment rendered. I think there is no error in the judgment of the Court of Common Pleas.
In this opinion TORRANCE, J., concurred. *Page 188