E. R. Butterworth & Sons v. Teale

Morris, J. This action was brought to recover for services as undertaker in the burial of appellant’s husband. The complaint avers the services to have been performed “at the instance and request of defendant,” and that they “were of the reasonable and agreed value of $561.” The answer denied liability, and alleged the services to have been rendered at the request and upon the credit of a fraternal organization of which deceased was a member at the time of his death; which was denied. Upon these issues trial was had before the court without a jury, and the court found there was no express contract for the rendition of the services, but that they were rendered with the knowledge and consent pf defendant, and were of the reasonable value of $150, in which sum judgment was entered, and defendant appeals. • [15] Appellant contends that, error lies in that respondent sued upon an express contract and recovered upon a quantum meruit. The language- of the complaint is, “at the instance and request of defendant,” the finding justified by the proof is “with the knowledge and consent of defendant.” There is no such fatal variance as would necessitate a finding of error. “No variance- between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” “Whenever it shall be alleged that a party has been so misled that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just.” Bal. Code, § 4949 (P. C. § 420). If there was a variance between the pleading and proof, it availed appellant nothing, without a showing of resulting injury, in which case the powers of the lower court were ample to grant the proper relief. This section has been construed so often by this court that we do not now care to enlarge upon it. The following cases are decisive of the point, contrary to appellant’s contention. Olson v. Snake River Valley R. R. Co., 22 Wash. 139, 60 Pac. 156; Wheeler v. Buck & Co., 23 Wash. 679, 63 Pac. 566; Ernst v. Fox, 26 Wash. 526, 67 Pac. 258. Finding no error, the judgment is affirmed. Rudkin, C. J., and Gose, J., concur.