59 P. 1109 | Or. | 1900
delivered the opinion of the court.
This is an action to recover a part of the purchase price of a tract of land. The complaint is as follows : “That on the eighth day of November, 1894, plaintiff bargained, sold, and delivered to defendant the following described real property, situate in Douglas County, Oregon, to wit: The southwest £ of southwest £ of section 25, township 29 south, range 9 west, at the agreed price of $600 ; that thereafter, on or about the fifteenth day of July, 1896, said defendant duly promised and agreed with plaintiff that he, said defendant, would pay the said purchase price as follows : $200 of said purchase price defendant would pay within one year from said date, with interest thereon at the rate of seven per cent, per annum from said eighth day of November, 1894, and the balance of said purchase price, $100, with interest at the rate of seven per cent, per annum, should be paid annually from the fifteenth day of .July, 1897, until paid, when defendant should receive a deed therefor ; that, at the time of said purchase as aforesaid, defendant took possession of said real property, and has received the rents and profits thereof ever since, and is now possessed of the same ; that there is now due and owing from defendant to plaintiff under said contract of purchase the sum of $200, with interest thereon at the rate of seven per cent, per annum from November 8,1894, no part of which has ever been paid. Wherefore plaintiff demands judgment against defendant for the sum of $200, with interest thereon from November 8, 1894, and the
In State v. Thompson, 28 Or. 296 (42 Pac. 1002), a variance of two days between a note offered in evidence and the one described in an indictment was held to be immaterial, Mr. Chief Justice Bean saying : “The indictment does not undertake to set out the note according to its tenor, but only in substance and legal effect; and the difference of two days in the date alone could not have misled the defendant in making his defense, and will not
Our statute declares that ‘‘no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to Ms prejudice in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as shall be justHill’s Ann. Laws, § 96. An examination of this section shows that if an adverse party has been misled by the introduction of evidence which did not correspond with the allegations in the pleadings, and seeks to escape the effect thereof, he must allege that he has been misled to Ms prejudice in maintaining his action or defense upon the merits. When the memorandum was offered in evidence, defendant’s counsel objected to its introduction on the ground that it