Peters v. Foss

The complaint in this case alleges that the defendants, in consideration that the plaintiff would allow them to construct a flume upon certain mining claims owned by the latter, and would suspend operations upon the claims for the period of two weeks to enable them to do so, promised, etc. It avers performance by the plaintiff, and alleges that the defendants constructed the flume, but not within the period agreed on, and that they have not complied with any of the conditions of the agreement on their part. The answer admits the construction of the flume, and admits the agreement allowing it to be constructed, and to suspend operations upon the claims for that purpose, but denies that the suspension was to be limited to the period of two weeks. It avers that the suspension .was to continue so long as the defendants should be occupied in constructing the flume, and denies each and every promise alleged to have been made by them in consideration of the agreement. Several promises are alleged, and among them a promise to supply the plaintiff with water to work his claims; and evidence was introduced at the trial tending to sustain the complaint in this respect. No other evidence was offered; and on motion of the defendants, the Court granted a nonsuit, upon the ground that the agreement had not been proved.

The conditions on behalf of the plaintiff are admitted, except in one particular; and the difference between the agreement alleged and that admitted, so far as these conditions are concerned, would seem to be immaterial. There is no pretense of any failure to perform, nor of any variance between the pleadings and the proof, and the most that can be said is, that the agreement as admitted in the answer differs to some extent from the agreement as stated in the complaint. As there is no question of performance, however, we think the difference is not such as entitled the defendants to a non-suit; for it is evident that they could not have been taken by surprise, and the rule in case of a variance does not apply.

*591The principal difficulty arises in regard to the conditions to be performed by the defendants, the complaint alleging several distinct promises, and the evidence being confined to one of these promises only. Greenleaf, in his work on Evidence, says that in such a case the promises are descriptive of the contract, and must be proved as alleged; and this view appears to be in accordance with the author iti.es cited. (See 1 Greenleaf on Ev., secs. 66, 67, 68.) The seventy-first section of the Practice Act provides that “ the Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect.” This provision is sufficiently broad to cover the objection taken, and we think should be applied to errors of description as well as to errors in other respects. The defendants were neither surprised nor prejudiced by the failure of proof; and the error in stating the agreement, if there be any, is an error which the Court should have disregarded.

The judgment is reversed, and the cause remanded for a new trial.