69 P. 164 | Kan. | 1902
The opinion of the court was delivered by
This is a proceeding in error from a judgment of the district court sustaining a demurrer to the plaintiff’s evidence in an action for the wrongful
The principal contention of the defendant is that there was a variance between the plaintiff’s petition and proof, and therefore that the demurrer to the evidence was rightly sustained. The petition alleged that Morris, the mortgagor, instructed Ogee, his agent, to direct Davis, McDonald & Davis, the commission firm, to send the proceeds of the cattle sale to John D. Myers, the plaintiff’s agent, but that by mistake the remittance was made to John Q,. Myers. The proof was that Morris had'not given such instructions to Ogee, but on the contrary had instructed him to cause the remittance to be made to John Q,. Myers. That did not constitute a variance justifying the court in sustaining the demurrer to the evidence. The substantive litigated fact in the case was the ownership of the money derived from the sale of the cattle, not the mistake or design of any of the parties in putting it in the h*ands óf John Q,. Myers. The question as to how the latter got the money, whether by direction of Morris or the mistake of Davis, McDonald & Davis, was immaterial, except as explanatory of the fact of his getting it. The money not being his, the inquiry as to how he got it was immaterial to the question of his right to keep it. “No variance between the allegations in the pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” (Civil Code, § 133 ; Gen. Stat. 1901, § 4567.) A departure from the pleadings in those mere incidents of evidence which are not inherent in the substantive issues of the case, and
The judgment of the court below is reversed, with directions to overrule the demurrer to the evidence, and for a new trial.