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HALL v. POTEAT

No. 737.

125 S.E.2d 924 (1962)

257 N.C. 458

David HALL, Plaintiff, v. Zelma Farrish POTEAT and Robert L. Satterfield, Guardian ad Litem of Charlie Jennings, Jr., Original Defendants, and Donald M. Terrell, by his Guardian ad Litem, Mrs. Evelyn Terrell, Additional Defendant.

Supreme Court of North Carolina.

June 15, 1962.

Attorney(s) appearing for the Case

Booth, Osteen, Upchurch & Fish, Greensboro, for plaintiff appellant.

Haywood & Denny and George W. Miller, Jr., Durham, for original defendants appellees.

BOBBITT, Justice.

The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff's allegata and probata. Proof without allegation is no better than allegation without proof. A plaintiff must make out his case secundum allegata. He cannot recover except on the case made by his pleading. Vickers v. Russell, 253 N.C. 394

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