LaVange v. Lenoir

Plaintiff’s only contention on appeal is that the court committed prejudicial error in granting defendant’s motion for involuntary nonsuit at the close of plaintiff’s evidence. This contention must be examined in light of the variance between the allegations contained in plaintiff’s complaint and the evidence presented by plaintiff at the trial.

“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…