By the Court,
Whiton, C. J.
Presuming that the judge before whom the cause was tried was right in deciding that there was a material variance between the complaint and the testimony offered by the plaintiff, we are of opinion that the court should have allowed the plaintiff’s motion to amend the complaint in such a manner as to render the testimony *371admissible. The code (§ 77) provides that “no variance between the allegation in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party, to his prejudice in maintaining his action or defence upon its 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 mislead; and thereupon the court may order the pleading to be amended, upon such terms as may be just.” Section 78 of the code provides that, “where the variance is not material, as provided in the last section, the court may direct the fact to be found in accordance with the evidence; or may order an immediate amendment without costs.” These sections of the code contain ample provisions for cases of this kind. If the court was satisfied, that the defendant had been misled by the complainant; it was the duty of the judge to allow the plaintiff to amend the complaint upon such terms as were just.— If the court was not so satisfied, the judge should have permitted the testimony to go to the jury without any amendment of the complaint, or should have allowed the plaintiff to amend his complaint immediately without costs. We cannot tell what the proof was, which the defendant offered, to show that he had been misled, and cannot therefore decide whether the judge should have proceeded under the 77th or 78th sections, but it seems clear that the judge by refusing to allow the plaintiff to amend on any terms, and ordering a judgment of non-suit, committed an error. As the decision of the court below appears to have been based entirely upon the variance between the complaint and the testimony, we refrain from expressing an opinion upon the other questions discussed by counsel at the argument.
Judgment reversed and new trial ordered.