Stanley Matthews

“ Whatever obscurity there was in pleading the defense, considered apart from the facts subsequently disclosed in evidence, nevertheless, all the testimony necessary to its establishment was offered and admitted without objection. It was offered and admitted as tending to prove that there had been a breach of the conditions of the policy; and the whole matter of the defense was covered by the testimony, on examination and cross-examination of the witnesses, both on the part of the defendant in chief and on that of the plaintiff in rebuttal. ”

“ But, waiving any question on that point, it is clear that the privilege indorsed on the policy, in the following terms: 'To use gasoline gas; gasometer, blower, and generator being under-ground, about 60 feet from main building, in vault. No heat employed in process,'-did not sanction the keeping, using, or storing of gasoline, or its equivalent,-burning fluid or oil,-except for actual use in that gas apparatus. There is no express permission to keep gasoline given in the words of the privilege. ”

“ In section 539 it is provided that 'a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. If a party insists that he has been misled, the fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. ”