Zeno v. Bazzell

Opinion by RITTENHOUSE, C.

(after stating the facts as above). The question presented by the several assignments of error is whether or not the court .erred in excluding the note from the jury on the ground that there was a fatal variance between the note pleaded and the one offered in evidence. Comp. Laws 1909, secs. 5673 and 5674 (Rev. .Laws 1910, secs. 6062 and 6063), provides:

“Section 5673: No variance between the allegations in a pleading and the proof, is to be deem,ed material, unless it have actually misled the adverse party, to-his-.prejudice, in maintaining his action or defense upon the merits.. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.”

“Section 5674: When the variance is not material, as proved in the last section, the court may direct the fact to be found, according to the evidence and may order an immediate amendment without cost.’"

*576 ■ From an examination of the record, we cannot see how the defendants could have been misled in their defense by reason of this slight variance. They had already admitted in their answer the execution of the note sued on and were defending on the grounds of fraud. Under these circumstances, it could not be said that the slight variance in the date of this note misled the defendants to their prejudice in their defense; that they were so misled must be proved to the satisfaction of the court, and it must be shown in what respect they have been misled, as provided by section 5673, supra.

They could neither allege nor prove in this action that they were misled, when they had already admitted the execution of the note sued on.

“In the various states in which the code system, as contra-distinguished from the' common-law system, prevails, the rule as to variance is that it niust be such as to mislead the adverse party to his prejudice in maintaining the action or defense on the merits.” (13 Enc. of Ev. 646.)

C., R. I. & P. Ry. Co. v. Bankers’ National Bank, 32 Okla. 290 , 122 Pac. 499 ;

Short v. McRae, 4 Minn. 119 ( Gil. 78 ).

Where the facts which warrant a judgment for the plaintiff have been clearly alleged, and the defendants have admitted the execution of the note, an objection to the introduction of the note in evidence on the ground that there was a fatal variance, because the original note was dated March 25, 19 — , and the note attached to the jpetition was dated March 25, 1910, is a frivolous objection, and the trial court erred in sustaining the same.

For the reasons assigned, the judgment of the trial court should be set aside, and the cause reversed and remanded for a new trial.

By the Court: It is so ordered.