Whittemore v. Merrill

If,, in the trial of an action, the plaintiff’s evidence is insufficient to authorize or justify a verdict in his favor, the court may properly order a nonsuit. Such is the settled law in this state. And it is a rule of law too well-settled and too often acted upon to require the citation of authoi’ities in support of it.

Another fundamental rule' of law is that, in an action upon a contract, if any part of the contract proved varies materially from that stated in the plaintiff’s declaration, it will be fatal; for a contract is an entire thing, and must be proved as it is alleged. If a joint contract with two plaintiffs is alleged, proof of a several contract with each plaintiff will not support the action, and the plaintiff may be nonsuited. 1 Green. Ev. § 66, and 2 Green. Ev. § 110.

At the trial of this action in the court below, after the plaintiffs had put in their evidence and rested their case, the presiding justice ruled that the evideuce tended to show a separate contract with each plaintiff, and did not tend to show a single contract with both plaintiffs, as alleged in the declaration, and thereupon directed a nonsuit.

We have carefully examined the evidence, and we think the ruling was correct, and the nonsuit properly ordered.

Exceptions overruled.