
    Robert Chapman, Plaintiff, v. Dines Carolin and James A. Carolin, Defendants.
    1. When there is a variance between some of the allegations of a complaint only, and the proof, and nothing more appears; the court has no power to nonsuit, on the mere ground that such a variance, whatever it may be, is material
    2. The only test of its materiality, is proof to be furnished by the defendant to the Court, that the variance has actually misled him to his prejudice in maintaining hjg defense upon the merits.
    3. When such proof is not furnished, the variance must be disregarded, and the pleadings may be amended to conform to the facts proved.
    4. Where a note which, by its terms, is payable eight months after its date, is described in the complaint correctly, except that the time when it is payable is not stated; so that, in effect it is stated to be payable, generally and absolutely; the variance is immaterial. Proof by the defendants, that they knew the plaintiff held the note produced at the trial; that they had given no other note of that date and amount; and no note of that amount payable generally, does not tend to show that they have been misled by the variance, no defense upon the merits being pretended.
    5. It is only when the cause of action to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, that the case presents a failure of proof, and ceases tobe one Of variance within sections 169 and 170 of the Code.
    (Before Bosworth, Hoeeman, and Pierrepont, J. J.)
    Heard, June 17th;
    decided, July 3d, 1858.
    This is an appeal by the defendants, from a judgment rendered against them, in an action tried before Mr. Justice Slosson and a jury, in April, 1858. Robert Chapman is the plaintiff, and Dines Carolin and James A. Carolin are the defendants.
    The complaint (sworn to in January, 1858,) states as a cause of action, that the defendants, being partners, under the name and firm of D. Carolin & Son, on the 2d of March, 1857, made their promissory note, in writing, of that date, “whereby they promised to pay to the order of themselves the sum of $792.21, and the said payees thereof indorsed the said note to the plaintiff.” . . “When the said note became due and payable it was duly presented to the said defendants, Dines Carolin and James A. Carolin, and payment thereof was duly demanded but the same was not paid,” &c., &c.
    The answer denied that “ the defendants made, or indorsed the promissory note described in the said complaint,” &c.
    On the trial, the plaintiff produced a note signed and indorsed, D. Carolin & Son, proved the signature to it, 'and the indorsement upon it, to be the handwriting of Dines Carolin, one of the defendants, and offered to read it in evidence.
    Defendants’ counsel objected to its being read in evidence, on the ground that it was not the note described in the complaint. That the note sued on, as described in the complaint, was payable on demand, while that offered in evidence was payable eight months after date. The note so offered to be read (with the indorsement thereon,) was as follows, to wit:
    New York, March 2,1857.
    “Eight months after date, we promise to pay to the order of ourselves, seven hundred and ninety-two dollars and twenty-one cents, value received.
    $792.21. Signed “D. Carolin & Soy.
    “Due November 5th.
    (Indorsed) “D. CAROLiy & Soy.”
    The Judge stated that he would allow the defendants to introduce evidence that they had been surprised, or misled by the description of the note in the complaint.
    Dines Carolin, one of the defendants, was then sworn, and among other things, testified that he knew the plaintiff held this note, that his firm had never made any other note of this date and amount, and they had not made any note payable on demand.
    The Judge decided that the defendants had not been misled, that the complaint might be amended to conform to the proof, and the note be read in evidence, to which decision the defendants’ counsel excepted.
    The note was then read in evidence and the plaintiff rested. The defendants then moved for a nonsuit, on the ground of failure of proof, which motion was denied, and they excepted to the decision.
    
      No evidence being offered by the defendants, the Judge instructed the jury that the plaintiff was entitled to recover, to which the defendants excepted. A verdict was rendered in favor of the plaintiff on which judgment was entered, and from that judgment the defendants appealed to the General Term.
    
      Charles A. Miller, for appellants
    
      G. & T. Stevenson, for respondent.
   Bv the Court.

Bosworth, J.

—The note was correctly described in every particular, except one. It was, by its terms, payable eight months after its date. The complaint, did not state when it was payable. It stated truly its date, and amount, the names of the makers and payees, and the indorsement of it. A note, stating no day of payment, would, as to that particular, correspond with the complaint. There was undoubtedly a variance between the note produced and that described by the complaint. But the variance was not material. The Code declares that no variance between an allegation in 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. (Code, § 169.)

If a party allege he has been misled, he must prove that fact to the satisfaction of the Court, and in what respect he has been misled. One of the defendants was sworn, and testified as to those matters, and his evidence showed that they had never made any note payable on demand, nor any other note of the date and amount of the one in suit, and he knew the plaintiff held this identical note, and he did not pretend there was any defense to it on the merits. The Court was therefore bound to disregard the variance. (Catlin v. Gunter, 1 Kern., 368.)

When there is a variance between some of the allegations of a pleading and the proof and that is all, the Court has no power to nonsuit on the mere ground that such a variance exists, or is material.

The only test of materiality of the variance, is proof, to be furnished by the party objecting to the variance, that it has actually misled him, to his prejudice, (if a defendant) in maintaining his defense, upon the merits. And the proof must show “in what respect he has been misled.” If it is not made to appear that he has been so misled, his objection is unavailing. He cannot be misled to his prejudice upon the merits, when he has no merits. These defendants had no merits, and no defense.

It is only when, the allegation of the cause of action, to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, that it presents the case of a failure of proof, and ceases to be one of variance within sections 169 and 170 of the Code. (Code, § 171.)

In this case, the allegation of the cause of action was unproved in one particular only. In all others it was proved precisely as stated in the complaint. The nonsuit was properly refused, and there was no error in ordering a verdict for the plaintiff.

The judgment must be affirmed, with costs.

Judgment affirmed.  