
    John D. Zent, Resp’t, v. Robert Watts, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    Yabiance—When thebe is not a fatal vabiance between the demand FOB JUDGMENT AND THE CAUSE OF ACTION PBOYED.
    The plaintiff had a claim for balance of an account against the defendant for $328, which was compromised and settled on the basis of $300, $200 of which was paid. The cause of action declared upon was the original account, and the one proved was the compromised agreement. Held, that the demand for judgment in the sum of $Í58, the balance which would have been due upon the account, did not have the legal effect to limit the cause of action as set out in the complaint, to the one originally existing in the plaintiff’s favor, for goods sold and delivered. That there was not a fatal variance.
    Appeal from the judgment of the Erie county court, entered upon a verdict in the plaintiffs favor, and from an order denying the defendant’s motion for a new trial.
    
      E. C. Robbins, for app’lt; J. Romayne, for resp’t.
   Barker, P. J.

parties had dealings together, and the plaintiff kept an account of the same, who, in July, 1886, presented a copy of his account, to the defendant, which showed a balance his due of $328, which the defendant disputed in part, pointing to some of the items, which he claimed were erroneous.

The parties agreed in their statements made upon the trial as witnesses that at that time their disputes and controversies over the accounts were compromised and settled on the basis that the defendant should pay to the plaintiff $300 in cash, in full payment of the account, and thereupon the plaintiff prepared and delivered to the defendant a receipt acknowledging full payment of the account.

The defendant set up payment in bar of recovery, and testified on the trial that he at the time of the settlement paid $300, the sum agreed upon. This was his only defense.

The plaintiff testified, and was corroborated in part by other witnesses in his statement, that when the account was adjusted the defendant paid only the sum of $200, and promised to pay the balance in a few days thereafter, and that the same had never been paid. He admits the making and delivery of the receipt, but testified the explanation of that circumstance, that when the receipt was delivered to the defendant it was understood that all of the $300 was to be then paid, but that the defendant on counting the money which he had in hand was short of that sum $100, and promised to hand the balance to the plaintiff in a few days, and for that reason the receipt was not recalled or altered so as to correspond with the amount paid.

On the trial the defendant insisted that there was a substantial and fatal variance between the cause of action set out in the complaint and the one proved in this.

That the cause of action declared upon was the original account, and that the one proved was the compromised agreement, is set forth substantially as proved.

The demand for judgment in the sum of $158, the balance which would have been due upon the account as first presented, after crediting the $200 paid as admitted by the plaintiff, did not. have the legal effect to limit the cause of action as set out in the complaint to the one originally existing in the plaintiff’s favor for goods sold and delivered. John Bourland’s evidence that he prepared a note at the plaintiff’s request, which was given in evidence, was wholly immaterial and should have been rejected.

But we do not see how the evidence could have injured the defendant, in the least, as there was no statement made by the witnesses, from which it could be inferred by the jury, that it was intended to be presented by the plaintiff to the defendant, for him to sign as a note, for the balance, which the plaintiff claimed was his due, and unpaid on the settlement. The evidence cannot be construed, as amounting to a statement by the plaintiff to Bourland, that the defendant owed him the sum of $100.

If the charge of the county judge as first made, relative to the inference, which the jury might draw from the circumstance, that the note was prepared by Bourland, at the plaintiff’s request, was erroneous, the error was corrected by the subsequent part of the charge after the judge’s attention was particularly called to Bourland’s evidence. The other exceptions have been examined and we discover no error which should lead to a reversal of the judgment, and the same should be affirmed.

Haight, Bradley and Dwight, JJ., concur.  