## Facts

- Doris Manning, a Miami waitress seeking a motion-picture career, met Elias M. Loew, a theater owner, in January 1941.
- Manning alleged Loew promised to secure her a screen test or make a film starring her if she provided him companionship, services, and accompanied him as he directed.
- At trial, Manning testified the arrangement required her to stay in Boston, accompany Loew to his home and on trips, see him when he wished, and “be like a daughter” to him.
- Manning testified she spent time at Loew’s home and accompanied him on trips and outings.
- Manning admitted she had sexual intercourse with Loew on various occasions.
- Manning also admitted she had been in bed with another man, had her picture taken in bed with him, and traveled to resorts with him.
- Loew ended the arrangement and stated he would not carry out the alleged promise to help her obtain a screen test or film role.
- Manning sued for breach of contract; at the close of her evidence, the trial judge directed a verdict for Loew.

## Issues

1. Whether a directed verdict was proper because the contract proved at trial included an essential term (“be like a daughter”) not alleged in the declaration, creating a fatal variance between pleading and proof.
2. Whether, even apart from any variance, Manning’s admissions showed nonperformance because her conduct was inconsistent with the essential promised role.

## Decision

- The Supreme Judicial Court overruled Manning’s exceptions and affirmed the directed verdict for Loew.
- The court held the proof introduced an essential term (“be like a daughter”) not pleaded, constituting a variance that barred recovery on the contract alleged.
- The court held, alternatively, that Manning’s admissions established conduct inconsistent with her claimed promise and independently warranted a directed verdict.
- The court stated a directed verdict supported by a variance is not erroneous merely because the record does not show the trial judge expressly relied on pleading variance.

## Legal Principles

- A plaintiff must recover, if at all, on the contract pleaded; proof of a materially different agreement that changes or adds an essential term creates a fatal variance.
- Where the plaintiff’s own evidence shows failure to perform an essential contractual undertaking, the claim may fail as a matter of law at the close of the plaintiff’s case.
- A directed verdict may be affirmed on any ground supported by the record, including variance between pleading and proof.

## Conclusion

The court affirmed judgment for the defendant because the plaintiff’s trial proof described an agreement with an essential “like a daughter” term not pleaded, and her own admissions showed conduct incompatible with that essential undertaking, defeating her breach of contract claim as a matter of law.


Manning v. Loew, 313 Mass. 252, 46 N.E.2d 1022 (Mass. 1943)