VARIANCE. A disagreement or difference between two parts of the same legal proceed ing which ought to agree together. Varianc es are between the writ and the declaration, and between the declaration, or bill in equity, and the evidence.
Variance in matter of substance is fatal to the action ; Stephenson v. Mansony, 4 Ala. 819 ; Lawrence v. Knies, 10 Johns. (N. Y.) 141; and is ground for demurrer or arrest of judgment ; Wilbur v. Brown, 3 Den. (N. Y.) 356 ; Christian Bank v. Greenfield, 7 T. B. Monr. (Ky.) 290 ; but if in matter of form merely, must be pleaded in abatement ; Humphreys v. Collier, Breese (Ill.) 298 ; How v. McKinney, 1 McLean 319,• Fed. Cas. No. 6,749 ; or special demurrer ; Sargent v. Hayne, 2 Hill (S. C.) 585; and a variance be tween the allegations and evidence upon some material points only is as fatal as if upon all ; 7 Taunt. 385; but, if it be merely formal or immaterial matter, will be disre garded ; Ferguson v. Harwood, 7 Cra. (U. S.) 408, 3 L. Ed. 386. The court may allow a technical variance between the pleadings and proofs to be cured by an amendment not in troducing any other cause of action or affect ing the merits of the case between the par ties; Gormley v. Bunyan, 138 U. S. 623, 11 Sup. Ct. 453, 34 L. Ed. 1086. Slight variance from the terms of a written instrument which is professedly set out in the words themselves is fatal ; Hampst. 294.
It is tog late after plea to take advantage of a variance between the description in the writ and the declaration of property replev ied ; Reeder v. Moore, 95 Mich. 594, 55 N. W. 436.
Where, in an action on a contract, the pleader did not set out the exact words of the contract, and a different contract ex pressed in different words was proved, there is no real variance, as the difference be tween the declaration and the proofs must be real and tangible to constitute a vari ance; Beckwith v. Thompson, 63 Fed. 232, 11 C. C. A. 149, 25 U. S. App. 58. Where the plaintiff declared that his cattle died of "Tex as cattle fever," and that it was contagious, and the court found that the cattle died of "Texas fever," and it was infectious, held that the variance was immaterial; Grayson v. Lynch, 163 U. S. 468, 16 Sup. Ct. 1064, 41 L. Ed. 230. So where in an indict ment the name of the "National State Bank," "carrying on a national banking business at the city of Exeter," was used instead of "The National Granite State Bank of Exeter ;" Putnam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118.
A variance between proof and declaration should be called to the attention of the court when the declaration can be amended; George A. Fuller Co. v. McCloskey, 228 U. S. 194, 33 Sup. Ct. 471, 57 L. Ed. 795.