If, at the trial of any action, there appears to be a variance between the evidence and the allegations or recitals, the court, if it consider that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the pleadings to be amended, on such terms as to the payment of costs or postponement of the trial, or both, as it may deem reasonable. Or, instead of the pleadings being amended, the court may direct the jury to find the facts, and, after such finding, if it consider the variance such as could not have prejudiced the opposite party, shall give judgment according to the right of the case.
Va. Code Ann. § 8.01-377
Remedy when variance appears between evidence and allegations
Applied in 4 court decisions — leading case T. M. Graves Construction, Inc. v. National Cellulose Corp. (1983)
Most recently applied in Wetlands Am. Trust, Inc. v. White Cloud Nine Ventures, L.P. (February 2016)
Code 1950, § 8-217; 1977, c. 617.
How often courts cite this section
Court decisions citing this, by year. The dip in the last several years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the most recent years, so recent citations are undercounted.
Official source: Virginia Law Portal (LIS). Reproduced from public-domain Virginia statutes; confirm against the official source for the current text. Not legal advice.