143 P. 924 | Or. | 1914
Lead Opinion
delivered the opinion of the court.
This is an action on a covenant in a lease to pay rent. The complaint recites plaintiff is the owner of
“The frame buildings situated on the southwest corner of Third and Flanders Streets, in the City of Portland, Oregon, being No. 95 North Third Street and No. 268 Flanders Street, in the said City of Portland, Oregon. ’ ’
The case was heard and determined by the court without the aid of a jury. When plaintiff elected to rest, defendant moved for a judgment of nonsuit, which was overruled by the court, and a judgment entered in favor of plaintiff for the amount sought to be recovered.
Section 97, L. O. L.: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually 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 so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may*344 order the pleading to be amended npon snch terms as shall be just.”
The record is nude of any action upon the part of defendant showing that he was misled by reason of the variance in the description of the premises; therefore, by virtue of the statute and its uniform interpretation, there was no other course open for the court than to declare the variance immaterial: Moore v. Frazer, 15 Or. 638 (16 Pac. 869); Stokes v. Brown, 20 Or. 530 (26 Pac. 561); Denn v. Peters, 36 Or. 486 (59 Pac. 1109); Creecy v. Joy, 40 Or. 28 (66 Pac. 295); Wehrung v. Portland Country Club, 61 Or. 48 (120 Pac. 747). Defendant did not offer any proof of the kind required by statute, nor did he claim that he had been in any way misled; in fact, he supinely rested upon the naked objection to the admission of the lease in evidence, asserting that the lease mentioned in the pleading was different from the one offered, and hence insisting that the proof was not within the issue.
“When, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not he deemed a case of variance within the two last sections, but a failure of proof.”
In terms that are general, the complaint alleges that the defendant leased to plaintiff lot 8, block 26, of Couch Addition to the City of Portland, and the frame buildings located thereon, for a definite time, at a rental of $300 per month, and that defendant did not pay for the use of the premises for the month of March, 1913. The lease offered in evidence is the same in
Perceiving no error in the record, the judgment is affirmed. Affirmed. Rehearing Denied.
Rehearing
Denied December 8, 1914.
On Petition for Rehearing.
(143 Pac. 1199.)
Department 2. Mr. Justice McNary delivered the opinion of the court.
In an application for a rehearing, counsel for defendant suggests a diminution of the record, “in con