Allen v. Goff
Supreme Court of Vermont
Assumpsit, on a parol award. The award set forth in the declaration was, that on the seventeenth day of May, 1836, the arbitrators (naming them) awarded that the defendant should pay the plaintiff $22,25 in money, and should deliver to the plaintiff, in a reasonable time, a pair of cart wheels, with iron bands on the hubs, &c. to be worth twelve dollars.
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Assumpsit, on a parol award. The award set forth in the declaration was, that on the seventeenth day of May, 1836, the arbitrators (naming them) awarded that the defendant should pay the plaintiff $22,25 in money, and should deliver to the plaintiff, in a reasonable time, a pair of cart wheels, with iron bands on the hubs, &c. to be worth twelve dollars. And the breach assigned was in substance that the defendant did not in a reasonable time, nor at any other time, deliver the said cart wheels to the plaintiff, though requested. Plea, non assumpsit. Upon the trial in the county court, the…
1Opinion of the Court
The opinion of the court was delivered by
Collamer, J.
The question presented for our decision is, whether there was a fatal variance between the declaration and the evidence.
*150Matter of allegation or averment, in a declaration, need be proved only in substance, and only so much thereof as makes a legal claim, and the remainder may be rejected as surplus-age. Matter of description must be proved precisely, perhaps literally, as set forth, and it cannot be rejected as sur-plusage, though its insertion was unnecessary.
It is quite clear that no more of the award need have been set forth than showed…
2Cited by6 opinions
- Slack v. BraggSupreme Court of Vermont · 1910
- Gibson v. WheldonSupreme Court of Vermont · 1909
- Farrell v. American Employers' Liability Ins.Supreme Court of Vermont · 1896
- Adams v. DavisSupreme Court of Alabama · 1849
- Ammel v. NoonarSupreme Court of Vermont · 1878
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