Where a pleading mischaracterises a contractual provision but the actual terms are proved without objection and the trial is conducted on the basis of the actual terms, the court should decide the claim on the basis of the terms as proved, subject to procedural fairness to the opposing party. A claim for damages for breach of a restraint of trade clause that is in substance a lost opportunity claim requires proof of the probability that the claimant would have been engaged, not merely proof of the revenue that would have been earned. The word 'unable' in a contractual guarantee provision bears its ordinary meaning of 'not able' or 'incapable' and does not extend to 'unwilling', where the contractual context contemplates a cooperative process for proving the amount owed.
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