W. H. Dodd & Co. v. Denny
Oregon Supreme Court
Appeal from Benton County. •This'is an action by the respondent upon a promissory note executed by appellant in respondent’s favor for one hundred and twenty-seven dollars and interest.
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Appeal from Benton County. •This'is an action by the respondent upon a promissory note executed by appellant in respondent’s favor for one hundred and twenty-seven dollars and interest. The complaint alleges the execution of the note, and that it was made payable “ -days after date” (there being no time of payment expressed.) It alleges that the note was made September 23, 1876; that no part of it has been paid, and that it is due. ■ The answer denies the execution of the note described in the complaint, and for a further defense alleges that appellant executed and delivered to respondent, on…
1Opinion of the Court
By tbe Court, Prim, C. J:
"Under tbe code “no variance between tbe allegation in a pleading and tbe proof shall be deemed material, unless it have actually misled tbe adverse party to bis prejudice in maintaining bis action or defense upon tbe merits.” And if appellant was so misled, be should have proven that fact to tbe satisfaction of tbe court, and in what respect be bad been misled; and thereupon tbe court could have allowed tbe pleadings to have been amended upon such terms as should be just. (Civ. Code, 124, sec. 94.)
It was further contended that tbe note was not due until ninety days…
2Cases cited2 opinions
- Thompson v. KetchamNew York Supreme Court · 1811
- Pearsoll v. FrazerNew York Supreme Court · 1853
3Cited by11 opinions
- West v. EleyOregon Supreme Court · 1901
- Hotel Lanier Co. v. JohnsonSupreme Court of Georgia · 1898
- Stokes v. BrownOregon Supreme Court · 1891
- North Star Boot & Shoe Co. v. StebbinsSouth Dakota Supreme Court · 1893
- Wehrung v. Portland Country ClubOregon Supreme Court · 1912
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