East Boston Timber Co. v. Persons — 2 Hill & Den. 126

Majority

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The East Boston Timber Company vs. Persons and another.

Headnote

A variance between the pleadings and proofs in respect to a contract may be disregarded at the trial, if it be one not calculated to surprise or mislead the adverse party; and this, whether the contract be in writing or by paroi.

Accordingly, in replevin, the defendants having avowed the taking for rent due on a paroi demise, alleging it to be payable at the end, of the year, whereas, on the trial, the proof showed that it was payable half yearly, and the circuit judge disregarded the variance; the court refused to grant a new trial on that ground, and allowed the defendant to amend, without costs.

Replevin, tried before Gridley, C. Judge, at the Erie circuit, in August," 1840. The defendants avowed the taking for rent in arrear under a paroi demise of certain premises for one year from the 22d day of September, 1836, at the yearly rent of $500, payable at the end of the year. On the trial, the defendants made out their case, except that it appeared the rent was payable half yearly. The plaintiffs insisted that this was a fatal variance. The judge disregarded and overruled the objection, and the defendants excepted. Verdict for the defendants. The plaintiffs now moved for a new trial on a bill of exceptions. • ■

D. Tillinghast, for the plaintiffs.

M. Taggart, for defendants.

Under the rule which formerly prevailed, there can be no doubt that this was a fatal variance—such as would have overturned a well' founded action, or a good defence. But a more liberal rule now prevails; and as the judge was satisfied that the variance was not calculated to mislead or surprise the plaintiffs, he was quite right in disregarding it. Although the statute only extends to mistakes in setting out process, pleadings and instruments in writing—(2 R. S. 406, § 79)—we have often applied

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the same rule in relation to contracts by paroi. The matter in controversy between the parties has been fully tried upon the merits, and we will not grant a new trial on account of this trifling variance. It may be cured by an amendment—if, indeed, any amendment is necessary. As to terms—we have allowed similar amendments without costs, and will do so in this case.

Ordered accordingly.