Gardiner v. Burket

CRAIL, J.

This is an appeal from a judgment against the defendant (appellant) on an oral contract, under the

[668]

terms of which the plaintiff was to remove or demolish a dwelling from her lot in the oil field near Venice and by which defendant’s decedent was to pay the reasonable value of the house. It is alleged in the complaint that the contract was entered into contemporaneously with a written lease, whereby the plaintiff leased her lot to the said decedent as a part of a community lease.

The first and principal contention of the appellant is that there was a fatal variance between the claim which was filed against the decedent’s estate and the complaint, in this respect that the claim which was presented against decedent’s estate described the lot upon which the dwelling was located as lot 2, block F, Ocean Strand Tract, whereas the complaint described it as lot 1. It seems that the plaintiff owned lot 1, but did not own lot 2, although said neighboring lot was also included in the community oil lease. It also is clear that the dwelling in dispute was removed from lot 1, and that the dwelling on lot 2 was not removed. The facts make it clear that the defendant was not misled by this variance. There can be no fatal variance where the variance results from a designation of a lot by number and where such designation is unnecessary in the statement of the claim or cause of action and is therefore mere surplus-age. To be fatal the variance must be as to a material statement and must also have misled the defendant. This is a good case to keep in mind that technicalities were made to serve justice, not justice to serve technicalities.

Appellant’s second contention is that there was a fatal variance because the respondent’s claim as filed in the probate court demands payment solely for the reasonable value of the building specified therein, whereas the complaint alleges that deceased promised “that he would reimburse and pay plaintiff all damages, costs and loss caused to plaintiff by the removal of the said residence building thereon and the reasonable value of the said residence building” and seeks judgment thereon. However, the findings of fact show that the total recovery was exactly the sum found as the value of the house. Therefore, if there is a variance it had no effect upon the sum awarded in the judgment.