Majority
p. 275DENNIS, Appellant, v. BELT, Respondent. No. 785; April 2, 1866.
Headnote
Pleading — Variance.—Calling Sums of Money “Money Advanced and expended,” etc., in a counterclaim and calling them a “book account” in the answer, does not render the latter ambiguous, and evidence of a “book account” produced at the trial in proof is no variance.APPEAL from Thirteenth Judicial District, Merced County.
Samuel A. Baker for appellant; C. Dorsey and P. D. Wigginton for respondent.
There was no fatal variance between the defendant’s counterclaim as alleged in his answer and the testimony offered by him in its support. The counterclaim was for “money advanced and expended for plaintiff at his special instance and request. ’ ’ The fact that defendant in. his answer calls the various sums so advanced a “book account” is of no consequence. It does not even have the effect to render the answer ambiguous and uncertain. The court below seems to have considered the answer as setting up a counterclaim resting in matter of book account strictly. If so the court mistook the nature of the defense. The mode
p. 276
in which the defendant proposed to prove his case was proper. The defendant’s books were not evidence. They could have been used by his witnesses as memoranda by which to refresh their memory but for no other purpose.
Judgment reversed and new trial ordered.
We concur: Sawyer, J.; Shatter, J.; Rhodes, J.; Currey, C. J.