195 P. 570 | Or. | 1921
“A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, With the pleading verified by his own oath or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect, that he believes it-to be true. If he do neither, he shall deliver to the adverse party, within five days after a demand thereof, in writing, a copy of the account, verified as in this section provided, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective.”
“The obligation by which one contracts to defend another in some action which may be instituted against him; an agreement which refers to the subject-matter of a contract, but, not being an essential part of the contract, either by the nature of the case or by the agreement of the parties, is collateral to the main purpose of such contract, an express or implied statement of something which the party undertakes shall be párt of a contract, and though part of the contract, yet collateral to the express object of it; a more or less unqualified promise of indemnity against a failure in the performance of a term in the contract.”
It is said in Abilene Nat. Bank v. Nodine, 26 Or. 53 (37 Pac. 47), that where a breach of warranty in the sale of a chattel is set up it is necessary to allege that the purchaser relied upon the warranty and was thereby deceived. The same doctrine is taught in Feeney & Bremer Co. v. Stone, 89 Or. 360 (171 Pac. 569, 174 Pac. 152). In both of these cases the seller represented to the buyer that the property sold had certain present qualities and not, as here, that he would perform some act afterwards. In such a state of facts, there is good reason for the rule that the purchaser must show that he,relied on the warranty; for, if he knew the goods did not possess the guaran
“No variance between the allegation iñ 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 order the pleadings to be amended upon such terms as shall be just.”
It is not alleged or intimated in any manner that the defendant was misled by the difference between the allegations of the complaint and the evidence. There was no objection to the testimony for incompetency or immateriality, but only because a proper itemized account was not furnished. From what has already been said, the objection is of no moment, and hence the defendant is in no situation to complain on that point. Moreover, in Section 98 the rule is laid down thus:
To be material the variance must have actually misled the defendant to his prejudice. No different evidence was required to maintain the action or defense on account of the amendment or without it, so that there was no error in the action of the court in that respect.
“The buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty.”
This is well settled by numerous precedents in this state. Besides all this, the fact that the plaintiff paid part of the purchase price is some evidence that he relied upon the defendant’s promise, whether it
The conclusion is that the judgment must be affirmed. Affirmed.