7 Wis. 500 | Wis. | 1859
By the Court,
The only question we deem it necessary to consider in this case is, whether there was such a variance between the mortgage introduced in evidence, and the one described in the complaint as to warrant the circuit court in rejecting it upon that ground.
The respondent alleges in his complaint that on or about the 2d day of October, 1852, the appellant executed and delivered to James H. Knowlton and Wiram Knowlton two sealed notes, one for $1,000 and another for $500, payable in one
The notes introduced in the evidence were sealed and bore date as described in the complaint, and it appeared the bond was dated as alleged. The mortgage introduced in evidence, described the notes as to the amounts, and as being sealed, and refers to the bond and amount of penalty correctly. The mortgage was also acknowledged and recorded as described in the complaint. At the top, the mortgage reads “ eighteen hundred and fifty,” with a blank. The circuit court found, as a matter of fact, from the proofs in the cause, that tfie mortgage was executed in October, 1852, and we think this finding was supported by the evidence. It must be apparent that the word “ two” was left out at the top of the mortgage, and this variance was immaterial, and properly disregarded.
Section 77 of the code provides that no variance between the allegation and the proof shall be deemed material, unless it actually mislead the adverse party to his prejudice in maintaining his action or defence upon its merits. We do not discover that the appellant claimed in the circuit court, that he had been misled by this variance, and we presume he was not. The code has greatly mitigated the consequences of a variance between the pleadings and proofs, and its provisions, in this respect, are wise and salutary.
We think the variance was immaterial, and that it could not have surprised the appellant, or in any way misled him.
The judgment of the circuit court is affirmed with costs.