Rorabacher v. Lee

Christiancy J. The agreement or contract of Rorabacher, the defendant, dated October 8th, 1861, upon which the suit was brought, gave a several and distinct right of action to the plaintiff Lee, and to Case when the condition precedent was performed [173] by Power or waived by tbe defendant. The promise was not to pay Lee and Case jointly, bat was so entirely several that one had no interest in its performance so far as it might benefit the other. The contracts were in every respect just as distinct and several in this respect, as if contained in separate instruments, in each of which the name of one promisee only had been mentioned. It is therefore difficult to see any principle upon which a joint action by the two could have been sustained. Certainly they were not bound to sue jointly. There is, therefore, no ground for the first assignment of error. There was no error in admitting in evidence the- agreement between 'William M. Power, and the defendant in reference to the sale and conveyance of the land-. This was the instrument referred to in the defendant’s contract of October 8th, as the “bond” of Power, and by this reference it became an essential part of the defendant’s contract, (upon which the suit was brought), without which -the meaning and effect of the proviso in that contract could not be understood. There is, therefore, no basis for the second assignment of error. The third, fourth and fifth assignments of error relate to the title which was actually conveyed by Power to the defendant, and to the question, whether a good title was in fact conveyed in accordance with the terms of Power’s contract or “bond.” But all questions of this kind are, in our opinion, rendered wholly immaterial under the finding of the judge of the acceptance by the defendant of the conveyance made by Power to him, and.of the bond of James and Samuel Barber indemnifying against any defects in the title. The finding shows that before this suit was brought, while the title of record as to a part of the land appeared to be imperfect, Power executed to the defendant a warranty deed for the land, and that James Barber who had once owned the land and conveyed it with warranty, gave to defendants [174] a bond executed, by himself and by Samuel Barber as surety, indemnifying the defendant against all defects in the title; that defendant accepted this conveyance and this bond, and expressed himself satisfied, and thereupon settled with Power in full for the price of the premises, holding back only the amounts he had agreed to pay to the plaintiff and Case, by the contract declared upon, and that the defendant and his grantees have remained in possession ever since. This can be treated only as an acceptance in full performance of the contract of Power to convey, referred to in the proviso of the defendant’s agreement declared upon, and it operated as a satisfaction or performance of the condition mentioned in the proviso, or as a waiver of that condition; and in either view the defendant’s contract to pay the plaintiff became from that moment absolute. But it is assigned as error (sixth assignment), that the court erred in deciding in favor of the plaintiff in the court below; the allegation of the amended declaration being that the bond of indemnity was given by William Power as principal and other persons as sureties, when it did not appear by the proof that any such bond was ever executed. The allegation in the amended declaration in reference to the persons by whom the bond of indemnity was executed, is as supposed by this assignment of error. But the whole substance of the allegation is that the defendant accepted Power’s deed, and a bond of indemnity in satisfaction; or perhaps more generally still, that the defendant had waived the condition contained in the proviso of the contract declared upon; since, so far as it affected the rights of the parties, the effect would have been just the same, if he accepted the bond of any other person in the manner this was alleged to have been accepted. It was, therefore, a simple question of variance in the description of a written instrument, between the allegation and the proof. The defendant did not object to the introduction of the evidence upon the ground of variance or [175] upon, any other ground, nor complain that he had been surprised or misled. And the record does not show that any objection was made to its consideration by the court. So far as appears by the record, the question is raised for the first time by the assignment of errors in this court. But it is now insisted that it is not to be treated as a mere variance, but as a complete failure of proof to sustain the allegation of the acceptance of the bond of indemnity. We think it must be treated as a mere technical variance or mistake and that under the circumstances disclosed by the record, the defendant could not have been surprised or misled by such a mistake in the description of the bond which he had accepted. The case, therefore, in our opinion, falls' within the provisions of section 92 of chapter 127 Compiled Laws, that “every variance between process, pleadings or any instrument in writing, recited or referred to in any other process, pleading or record, and every mistake in the name of any officer or other person, or in stating any day, month or year, or in the description of any property in any pleading or record shall be disregarded upon the trial of such cause, and after a verdict therein, unless such variance or mistake be calculated to surprise or mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mistake shall have been made.” This section, though inartificially drawn and somewhat deficient in perspicuity is, we think, plain enough in its intent and was intended to apply to a variance or mistake like the present. Had the objection been made at the trial, the more correct course would doubtless have been for the court to have ordered the pleadings, in this respect, to have been at once amended. This would be better in reference to the use. which might be made of the record in any subsequent cause. [176] But when no objection is taken upon the trial to the introduction of the evidence on the ground of variance, it is, we think, the duty of the court to disregard it. The judgment was, in our opinion, well warranted by the finding, and the finding by the evidence; and there being no error in the proceedings which could operate to the prejudice of the plaintiff in error, the judgment must be affirmed, and the defendant in error must recover his costs in both courts. The other justices concurred.