131 P.2d 1004 | Okla. | 1942
Plaintiff, Rosser-Moon Company, sued the defendant Sam Harris to recover the balance due on an account for labor and material furnished in upholstering and repairing furniture. A jury was waived, and from a judgment for defendant, the plaintiff appeals.
The plaintiff argues that error was committed in two respects, (1) in admitting evidence of payment when the defendant had not specifically pleaded payment as a defense, and (2) in overruling plaintiff's demurrer to defendant's evidence and entering judgment for defendant.
1. Defendant's answer consisted of a general denial, and it is clear that it did not present the issue of payment. Sullins v. Domer,
2. The question, then, is whether the trial court had a right to consider the answer as amended to conform to the proof so as to present the issue of payment.
It is well settled, on both reason and authority, that evidence, inadmissible because not within the issues presented by the pleadings, which is admitted without objection, is to be considered and given weight for all purposes the same as if it were legally admissible. Sanley v. Wilkinson,
In view of our harmless error statutes (12 O. S. 1941 §§ 78, 639; 22 O. S. 1941 § 1068), it is the duty of the courts to disregard technical errors in pleadings and procedure which do not adversely affect the substantial rights of the parties. Under the statute providing for amendments after the issues are made up (12 O. S. 1941 § 317), the courts have a wide discretion in allowing amendments which are "in furtherance of justice." Ellis v. Boggs,
It follows that where, as here, evidence of payment was introduced without objection, and the answer is amendable so as to present the issue of payment, it was for the trial court to give to such evidence the weight to which it was entitled, and to consider the answer as amended to conform to the proof. Mulhall v. Mulhall,
The plaintiff did not ask for a continuance to meet the issue of payment, and did not in the trial court, and does not here, claim that it was taken by surprise or that it has any further evidence to offer on the issue of payment.
This being an action of legal cognizance, and there being evidence introduced without objection reasonably tending to support the judgment, it is our duty to consider the answer as amended to conform to the proof so as *610
to present the defense of payment and to affirm the judgment. Board of County Com'rs of Pottawatomie County v. A. C. Davis
Sons,
Affirmed.
RILEY, OSBORN, DAVISON, and ARNOLD, JJ., concur. GIBSON, J., concurs in conclusion. BAYLESS, J., dissents. WELCH, C. J., and CORN, V. C. J., absent.