Hall v. Poteat

The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff’s allegata and probata. Proof without allegation is no better than allegation without proof. A plaintiff must make out his case secundum allegata. He cannot recover except on the case made by his pleading. Vickers v. Russell, 253 N.C. 394, 117 S.E. 2d 45; Lucas v. White, 248 N.C. 38, 102 S.E. 2d 387; Poultry Co. v. Equipment Co., 247 N.C. 570, 101 S.E. 2d 458, and eases cited. Whether the variance is to be deemed material (fatal) must be resolved in the light of the facts of each…