Maine against Bailey, 15 Conn. 298

Hinman, J. The plaintiff alleges in his declaration, that on or about the 1st day of May 1840, he purchased of the defendant a certain six years old cow, the property of the defendant, at the price of 29 dollars, which the plaintiff then paid to the defendant, as and for the price of said cow.

The only proof to support this part of the declaration, was the testimony of one Harris, “ that the defendant sold the plaintiff said cow, with a heifer and calf, and that they were sold together, at the price of 58 dollars for the whole.” The variance between the allegation and the proof, is too palpable for illustration or argument. But it is claimed, that as this is an action of deceit, for fraud in the sale, fraud is the gist of the action, and the contract an incident, merely ; and, therefore, the variance is said to be immaterial.

If this was a question, whether the plaintiff had not stated the contract with more particularity than was necessary, the doctrine contended for would undoubtedly apply. But the mere circumstance that a contract set out in the declaration is not the gist of the action, does not dispense with the necessity of proving it.

A contract is entire and indivisible and when alleged, must be proved as alleged, unless the whole of it is so entirely impertinent, that it may be struck out as surplusage, without injury to the pleading, if, therefore, the proof materially varies from the contract stated, the whole foundation of the action fails. And this rule applies, as well to actions of tort, as to actions of contract, where the contract is necessary to be stated, in order to maintain the ground of action. Bristow v. Wright, Doug. 665. 1 Chitt. Plead. 307. Bulkley v. Landon, 2 Conn. Rep. 413. per Gould, J. Kellogg v. Denslow, 14 Conn.

Rep. 411. 425. 1 Phil. Ev. 208. (Cow. & Hill's ed.) And though a traverse cannot be taken on an immaterial point, yet it frequently happens, that where material matter is alleged, with an unnecessary detail of circumstances, the essential and non-essential parts of the statement are, in their nature, so connected, as to be incapable of separation, and consequently, the whole must be proved. The question, therefore, is not, whether it was necessary for the plaintiff to allege, in his declaration, the price which he paid for the cow ; but whether, having made the allegation, it is necessary for him to prove it.

And this depends upon the question, whether the whole contract can be stricken out, and still leave the plaintiff a good declaration. But the plaintiff’s whole claim is grounded upon a contract; upon a sale by the defendant, and a purchase by the plaintiff: and though fraud is the gist of the action, yet that fraud was committed in the sale of the cow; and had there been no contract, it is very evident there could have been no fraud; as there is nothing else in the case, upon which fraud can be predicated. There is, therefore, no error in the judgment of the superior court.

The other Judges were of the same opinion,except Church, J., who was not present. Judgment affirmed.