11 S.D. 81 | S.D. | 1898
This action is founded upon the following-written contract: “This memorandum of agreement by and between Hermiston Bros., party of the first part, and John Jamison, party of the second part, witnesseth: Second party sells to first party the N. E, Sec. 12, town 111, range 48, for $2,140, payments as follows: One stallion [and several other specifically described animals]. And first party to assume mortgage of $650 payable three years from date of transfer.
The apparent conflict between the agreement to pay for the stock in case of failure to furnish perfect title, and the stipulation that the contract should be subject to approval of the owner of the land, is ex¿jlained by the fact that Jamison and Green feared the owner might not carry out the arrangement heretofore mentioned to convey for $1,300, half cash and balance secured by mortgage on the property, and the written contract cannot be construed as requiring that the owner should approve of the payment by plaintiffs in personal property, as provided therein. There is nothing in the written contract to indicate that Green signed as a witness, and the court properly charged the jury that the burden was on him to show that he so signed it.. The finding that he signed as a surety is abundantly sustained by the evidence.
In view of the pleadings and un contradicted evidence, the value of the animals sold by plaintiffs was immaterial, and the court properly excluded all evidence on that subject.
There was no error in allowing plaintiffs to offer evidence tending to prove that Green was interested with Jamison in the transaction, because it was alleged in the complaint, and denied in the answer, that they made the contract as principals, received the personal property of plaintiffs, and were jointly interested in the deal.
In the cross-examination of the officers of the corporation owning the land, there are certain answers which, standing
It is the theory of the complaint that Green signed the contract as a principal obligor. He alleged that he signed as a witness. The evidence clearly proved, and the jury found, that he signed as a surety, and no facts were alleged or proved which exonerate him from liability as such. Should this variance from the pleadings and proof be deemed material? We think not. No variance between the allegations in a pleading and the proof should be deemed material, unless it has actually so misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been misled, the fact shall be proved to the satisfaction of the court, and in what respect he hap been misled; and thereupon the court may order the pleading to be amended upon such terms as shall be just. Comp. Laws, § 4934. The record discloses no suggestion to the court below that defendant was misled by any variance between the proof and the allegations of the complaint. The charge of the court being more favorable to defendant than the case required, he has no cause of complaint in that regard. Finding no reversible error, the judgment of the circuit court is affirmed.