 No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.  The Pacific Reporter - Page 2321914Full view - About this book
 | California. Supreme Court - Law reports, digests, etc - 1906 - 872 pages
...reversal on that ground. "No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the...his prejudice in maintaining his action or defense upon the merits." (Code Civ. Proc., sec. 469.) The evidence is sufficient to support the findings.... | |
 | California. Supreme Court - Law reports, digests, etc - 1906 - 790 pages
...the owner of it. Under these circumstances it is impossible to see how the variance was one which " actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." (Code Civ. Proc., sec. 469.) We think, therefore, that the position taken by appellant... | |
 | New York (State). Commissioners of the Code, David Dudley Field - Admiralty - 1998 - 3652 pages
...variance between the allegation in a pleading and the proof, is to be deemed material, unless i have rm, the court may, in its discretion, if it appear that the demurrer was interpo defence, upon the merits , Whenever it is alleged, that a party has been so misled that fact must be... | |
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