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 presid*462ing 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.