McNerney v. Barnes

Hamersley, J. Upon (1) the defendant’s requesting the plaintiff to pay, on behalf of the defendant and for his benefit, the sum of $50 to Goodhart in satisfaction of Good-hart’s claim to that amount against the defendant, (2) the plaintiff’s transferring, in pursuance of that request, the sum of $50 belonging to him to Goodhart, and (3) Goodhart’s acceptance of the sum thus transferred in payment and satisfaction of his claim against the defendant, the law imposed upon the defendant the duty of reimbursing the plaintiff for the sum thus expended on behalf and for. the benefit of the defendant, and upon the defendant’s failure to perform this duty a right of action accrued to the plaintiff. This is the cause of action proved by the evidence of the plaintiff, and this cause of action is in substance alleged in the complaint as amended; its defective and faulty statement was waived by the defendant in denying the allegations of the complaint and going to trial upon that issue. It is evident that while an actual payment to Goodhart of the sum of $50 may be matter of substance, the precise manner in which that payment was accomplished is immaterial. If the plaintiff in proving his actual payment to Goodhart of the sum of $50 did disclose a mode' of payment differing from that described in his complaint, such a variance in proof is immaterial, and immaterial variances must *158 be wholly disregarded. Rules under the Practice Act, III, § 6. The trial court, therefore, did not err in refusing to charge as requested by the defendant. The exceptions taken to the charge as given furnished no ground for a new trial. Upon the issues joined, the value of the services on which Goodhart’s claim was based was immaterial, and the court properly charged the jury that they must find an actual payment to Goodhart by the plaintiff and the actual amount so paid, but that the value of Goodhart’s services was not in issue. The other claim of the defendant, that the court omitted to sufficiently instruct the jury as to the questions of law arising upon the pleadings, the state of the evidence, and the legitimate claims of the parties, is plainly unsupported by the record. There is no error in the judgment of the Court of Common Pleas. In this opinion the other judges concurred.