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Bell v. Knowles

45 Cal. 193 Court Cal. Docket No. 3,651 English

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p. 193
[No. 3,651.]
W. H. BELL v. J. E. KNOWLES and W. H. COWPER.

Headnote

Variance Between Complaint and Proof.—An objection that there is a variance between the evidence and the cause of action stated in the complaint, cannot be made for the first time on motion for new trial, or in the Supreme Court.
Interest on Judgments.—The Act of 1870 concerning interest (Laws 1870, p. 699), allows interest on all money judgments.
p. 194
Amendment to Complaint.—When it appears on the trial that there is a variance between the proof and the complaint, and an objection to the evidence on that ground is made by the defendant, the Court will, if an application is made, allow the complaint to be amended.
Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.
The plaintiff declared for goods, wares, and merchandise sold and delivered to defendants, and for money had and received by defendants to plaintiff’s use.
The testimony, which was admitted without objection, showed that the indebtedness arose out of goods delivered . by the plaintiff to the defendant Cowper, to be sold on commission. The plaintiff recovered judgment. The defendant moved for a'new trial, and in his statement assigned as a reason why a new trial'should be granted, that the evidence showed that no goods were sold, but that they were delivered to be sold on commission. The judgment was rendered May 6th, 1872, and provided that it should draw interest at seven per cent per annum. The defendant Cowper appealed.
J. M. Seawell, for Appellant.
The only judgments which bear interest are those for money lent. (Stats. 1870, p. 699.)
Quint $ Hardy, for Despondent.
The evidence was admitted without objection, and it is ’ too late to raise the point that the proof did not correspond with the complaint.

1. The objection to the admissibility of certain evidence, now made here for the first time, cannot prevail. Had it been made and insisted upon at the trial, which it was not,

p. 195
an amendment of the complaint would, no doubt, have been directed.

2. Upon the issues determined by the judgment the evidence is of such a character that we will not disturb the judgment.

3. There is nothing in the point as to the rate of interest named in the judgment. '

Judgment and order affirmed.