26 Wash. 526 | Wash. | 1901
The respondents, who were plaintiffs helow, brought this action against the appellant to foreclose a mechanic’s lien. In their complaint the respondents alleged that they entered into a contract with the appellant, through her authorized agents, to make certain needed repairs to the houses upon which the lien was filed, for which the appellant agreed to pay them the sum of $118.31; that they performed the services agreed upon, but that the appellant had “not paid the said sum of $118.31, nor any part thereof.” In the notice of lien, which is set out in the complaint, it is stated that the respondents performed labor upon, and furnished material to he used in the repair of the buildings liened upon, and that the value of the same was the sum claimed to he due. The answer admits that the respondents “performed cer
The appellant contends that there was a variance between the allegations and the proofs of the respondents, and because of this fact the court was right in directing a judgment in accordance with the answer, and that it was error for him afterwards to reverse his ruling and grant a new trial. But we do not think this contention sound. Under the code (§ 4949, Ballinger’s) it is provided that “no variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” And, “whenever it shall be alleged that a party has been so
In Distler v. Dabney, 3 Wash. 200 (28 Pac. 335), and Osten v. Winehill, 10 Wash. 333 (38 Pac. 1123), relied
Tbe order appealed from is affirmed.