Sommer v. Smith

Temple, C. — Appeal from a judgment and order denying defendant a new trial.

The question on this appeal is as to the materiality of a variance between the allegations of the complaint and the proof. It is averred that defendant, as plaintiff’s agent, purchased certain shares of stock in the Semi-Tropic Land and Water Company of California. The proof is, that as such agent he purchased for plaintiff certain agreements of a syndicate to furnish the shares of stock.

This seems a plain case of an immaterial variance, under section 469 of the Code of Civil Procedure. In its general scope, the proof corresponds with the allegations of the complaint. It was a purchase of shares of stock, but not the immediate purchase of certificates of stock, as would be inferred from the complaint.

The object of the suit was to recover the difference between what the agent reported he had purchased the stock for, and which plaintiff had paid the agent, and the price which, as plaintiff afterward discovered, the agent had actually paid. An examination of the record shows quite conclusively that the defendant was not misled by the variance. A full defense was made, as though the complaint had accurately stated the facts.

We think the judgment and order should be affirmed.

Belcher, 0., and Fitzgerald, 0., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.