| Ark. | Nov 15, 1884
The theory of the appellants is, that there was a fatal variance between the cause of action alleged in the complaint, and that proved upon the trial. The case presented is this : The appellee sued the appellants to recover the amount of an account due him, as he alleged, for painting a hotel in Hot Springs, and also to enforce a mechanic’s lien against the hotel premises. Upon the trial he proved that the work had been done by him and one Wirfs, who at the time was his partner; that before suit the partnership was dissolved, and Wirfs executed a formal assignment of this and all the other firm contracts to him and withdrew from the business. No objection was made to this testimony, and none to a want of proper parties, but the defendants undertook to avoid payment under an answer alleging that the work had been done by the partners in an unskillful manner, and that the full value of it had been paid by the defendant, Louisa.
If the action had been prosecuted in the name of the v firm as it stood when the work was done, there would ' have been no room for objection at any point. After the dissolution and assignment of his interest by one copartner to the other, the latter took all the rights of the firm and might have exercised them in the firm name for all purposes necessary to their enforcement, and for closing up the joint business. Busfield v. Wheeler, 14 Allen, 139; Holmes v. Shands, 26 Miss., 639" date_filed="1854-04-15" court="Miss." case_name="Holmes v. Shands">26 Miss., 639.
If the objection that 'the former partner should be a party had been distinctly made, an amendment might have been allowed bringing him in. By failing to make the objection it was waived. Mans. Rev. St., sec. 5031; Yonley v. Thompson, 30 Ark., 399; Dodge v. N. Y. St. Ship Co., 37 How., Pr., 524.
That there was a variance between the proof and the allegations of the complaint there is no question ; but the j^teriality of the variance is not to be determined as at common law by the incoherence of the two statements on their face. It must be shown by the party alleging the variance that he has been misled to his prejudice.- (Mans. Rev. St, 5075; Newman on Pl. & Pr., 730, et seq.; Green Ib., 467) There was no pretense of surprise or of being misled in this case. Indeed the only fact in the proof that is not found in the pleadings is the dissolution of the co-partnership, and the release by one copartner to the other of his interest in the matter in controversy. This evidence was admitted without objection, and we must take it that the parties deemed the variance immaterial, or that they treated the complaint as amended to admit such evidence. Burke v. Snell, 42 Ark., 57; Green. Pl. and Pr., sec. 468; Manice v. Brady, 15 Abb. Pr. (O. S), 173; Speer v. Bishop, 24 Ohio St., 598.
So long as the claim proved is within the “ general scope and meaning ” of the pleadings the variance cannot amount to a failure of proof (Mausf. Rev. St., sec. 5077), and it is apparent from the record that no other claim than the one proved was within the meaning of either the complaint or answer.
The appellants ask a reversal because their motion for a continuance was overruled; but this motion failed to show diligence in trying to procure the testimony of the absent witness, or that the testimony was anything more than cumulative. It was certainly no abuse of the court’s discretion to overrule it.
The proof, however, fails to disclose any fact from which Joseph Molen’s liability can be inferred. His wife seems to have controlled the hotel and made this contract in her own behalf in a business conducted by her, and the only exemption from liability claimed on her part was upon the theory that she had paid all that was justly due under the contract. Her answer admits that the necessary steps were taken to fix the mechanic’s lien against her interest in the premises described. None was claimed against Joseph Molen’s. He appears to have been a nominal party only. Upon the showing made, he should not have been a party at all. He denied the allegations of the ■complaint, and it was error to render judgment against him.
Let the judgment be affirmed as to Louisa Molen and her interest in the premises, and reverse and remand as to •Joseph Molen.