"Under tbe code “no variance between tbe allegation in a pleading and tbe proof shall be deemed material, unless it have actually misled tbe adverse party to bis prejudice in maintaining bis action or defense upon tbe merits.” And if appellant was so misled, be should have proven that fact to tbe satisfaction of tbe court, and in what respect be bad been misled; and thereupon tbe court could have allowed tbe pleadings to have been amended upon such terms as should be just. (Civ. Code, 124, sec. 94.)
It was further contended that tbe note was not due until ninety days after date. It will be observed that tbe note bears date “Albany, Oregon, September 23, 1876,” and reads: ‘ ‘-after date, without grace, for value received, I promise to pay,” etc. No time of payment having been expressed in tbe note, tbe law adjudges it to have been due and payable immediately. (8 John. 190; Herrick v. Bennet, 8 John. 189; Pearsol v. Fraser, 14 Barb. 564.)
Judgment affirmed.