Ah Goon v. Tarpey — 2 Cal. Unrep. 483

Majority

p. 483

AH GOON v. TARPEY and Others.

No. 8633;

June 3, 1885.

7 Pac. 188.

Headnote

Appeal—Immaterial Variance.—Reversal is not Warranted by-variances between allegations and- proof which are immaterial, if no one is misled thereby.

APPEAL from the Superior Court of the City and County of San Francisco.

A. A. Moore and Moore & Reed for appellants; T. C. Van Ness for respondent.

1. The difference in the names Ah Yak and Ah Jack; also as to whether the men were employed to be paid one dollar, or a dollar and a quarter, or a dollar and a half; and the statement in the assignment that the contract was with the Melrose Smelting & Refining Works—if variances, were immaterial, and misled no one: Code Civ. Proc., sec. 469.

2. The court did not err in striking out that portion of the answer relating to garnishment; it contained no defense to the action stated in the complaint.

Judgment and order affirmed.