This wаs an action brought by the appellees upon a subscription made by the appellant to a railrоad company for one hundred dollars, assigned to the appellees.
An answer of general denial was filed. The cause was tried by the court, finding for the appellees, motion for a new trial overruled, excеptions and final judgment for the appellees on the finding.
The motion for a new trial assigns, as causes therefоr, the admission of a subscription for one dollar; that the assessment of damages was too large; and that the finding was not sustained by the evidence.
The error assigned is in overruling the motion for a new trial.
The complaint charges that the defendant below, the appellant, agreed, in writing, to pay The Indianapolis, Craw.fordsville, and Dаnville Railroad Company, one hundred dollars, when the road should be completed and in running order from Indianaрolis to Covington, Indiana; that the road was completed between those points; that the subscription had been assigned to the plaintiffs below, the appellees;
On the trial, a paper was offered in evidence, of which the following is a copy:
“We, the subscribers, citizens of Fountain county, Indiаna, promise to pay The Indianapolis, Crawfordsville, and Danville Railroad Company, without relief from valuation or appraisement laws, the sums set opposite our respective names, for the purposе of aiding and assisting said company in the construction of a railroad from Indianapolis to Danville, Illinois, upоn the condition, to wit, that these subscriptions shall not be due or payable until said railroad is completed аnd in running order from Indianapolis to the town of Covington, Indiana. .
“Witness our hands this 14th day of May, 1867.
“ L. A. Lucas, - - $1.00”
The„appellant objected to its introduction, оn the ground of a variance in amount from the one set out in the complaint and the copy filed. The objеction was overruled, and the subscription was read in evidence. It was also proved that the subscription was assigned to the appellee, and that the railroad was completed to Covington on the first day of Sеptember, 1870. The court found for the appellee one hundred and six dollars.
The appellees seek to sustain the action of the court on the ground that the appellant, by failing to deny the execution of the subscription on oath, could not deny that it was for the amount stated in the copy filed with the complaint. They rely upon sec. 80, 2 G. & H. 105, which provides : “ Where a writing, purporting to have been executed by one of the partiеs, is the foundation of, or referred to in any pleading, it may be read in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by affidavit before the commenсement of the trial, or unless denied by a pleading under oath.” By failing to deny the execution of the instrument,
If there was a variance betwеen the contract described in the complaint, and the one produced on the trial, it could -not havе been introduced, except for the statutes on the subject of variance, amendments, and appеals.
“ No variance between the allegations in a pleading and the proof, is to be deemed matеrial, unless it have actually misled the adverse party to his prejudice in maintaining his action or defence uрon the merits.” Sec. 94, 2 G. & H. 114. The court may at any time direct any material allegations to be inserted, struck out, or modified to conform the pleadings to the facts proved. Sec. 99, p. 118. ‘‘No judgment shall be stayed or reversed, in whоle or in part, by the Supreme Court for any defect in form, variance or imperfections, contained in thе record, pleadings, process, entries, returns, or other proceedings therein, which by law might be amended by thе court below; but such defects shall be deemed to be amended in the Supreme Court.” Sec. 530, p. 278.
This court has held in all suсh cases, that the amendment will be considered as made, and the variance avoided. The court committed no error in receiving the paper. If the subscription was for one dollar, the complaint will be considered as amended to conform it to the proof. As thus amended, the subscription would be the one described in the complaint. If the defendant was misled to his prej udice by the variance, he might have proved it to the satisfaction of the court, and shown in what respect he was misled, and the amendment could have been madе only upon terms to be fixed by the court. Otherwise, the amendment will be deemed to have been made. Secs. 99 and 530, supra.
The subscription, as set out in the bill of exceptions, is for one dollar. There’ is no averment in the complаint of any mistake or any evidence relative to the amount sub
The finding of the court was for too much, and a new trial ought to have been granted.
The judgment of the said Fountain Circuit Court is reversed, with costs; cause remanded, with instructions to grant a new trial, and for further proceedings not inconsistent with this opinion.