McCants v. Thompson

• Decision Date: 10 January 1911
• Citation: McCants v. Thompson, 115 P. 600, 27 Okla. 706, 1911 OK 41 (Okla. 1911)
• Parties: McCANTS v. THOMPSON.
• Court: Oklahoma Supreme Court

115 P. 600

27 Okla. 706, 1911 OK 41

McCANTS v. THOMPSON.

Supreme Court of Oklahoma

January 10, 1911

Syllabus by the Court.

T. sued M. for the conversion of 1,500 crossties. M. having moved the court to require T. to make his petition more definite and certain, T. was thereby caused to insert therein the following clause, to wit: "*** By his then and there taking them and sawing off the ends of them, and by pounding with an ax or hammer the said marks off of the ends of them and then and there painting the said changed ends of them red.***" On the trial the evidence lended to show that the ends of the ties had neither been sawed nor cut off, but that the brands or marks had been allowed to remain, and red paint daubed over the same. M. complaining of a variance held that, M. having caused such unnecessary allegation to be inserted in T.'s petition, he cannot now be heard to assign as error such alleged variance in the proof.

(a) A party surprised during a trial, upon discovery of a mistake that will prejudice his interest, should immediately move for continuance or for such delay as would permit him to properly meet the issue.

(b) He will not be permitted to speculate upon the verdict of the jury and afterwards for the first time in his motion for new trial raise the question of surprise.

(c) To be entitled to a new trial on the ground of newly discovered evidence, the motion should set forth the names and place of residence of the witnesses; what they would testify to and be accompanied by the affidavits of said witnesses or give a sufficient reason for not producing same; facts must also be set out showing diligence and negativing fault on the part of the movant.

Oral proof as to the number of ties bought, though account of such ties is kept on books in due course of business, is admissible, without laying any predicate as to said books.

Error from Oklahoma County Court; Sam Hooker, Judge.

Action by F. L. Thompson against Joseph R. McCants. Judgment for plaintiff, and defendant brings error. Affirmed.

J. H Shirk and T. G. Cutlip, for plaintiff in error.

WILLIAMS J.

1. The defendant in error as plaintiff commenced an action on April 8, 1907, in the probate court of Oklahoma county against the plaintiff in error as defendant to recover the value of 1,500 cross-ties of the value of 40 cents each, the property of the plaintiff, alleged to have been converted on or about the 3d day of April, 1907, by the defendant to his use. Thereafter defendant moved that plaintiff be required to make his petition more definite and certain. The motion was sustained. Plaintiff filed an amended petition alleging in part as follows: "*** The said plaintiff on the first (1st) day of May, 1905, and during the two years since then preceding the filing of this suit, and on that and those days during the last preceding two years, which plaintiff is unable to more definitely state, was the owner of and was lawfully possessed in the Seminole Nation, Indian Territory, near Lima Station on the Rock Island Railroad, and at other places therein, of certain goods and chattels, to wit, said fifteen hundred (1,500) cross-ties afterward, on the said first (1st) day of May, 1905, and at diverse times during the two years since then, came to the possession of the said defendant by his then and there taking them and sawing off the ends of them, and by pounding with an ax or hammer the said marks off of the ends of them, and then and there painting the said changed ends of them red, and by other devices changing the said marks 'T' and 'H' with a circle around it at the ends of said fifteen hundred cross-ties. ***"

It was not necessary to allege the manner in which the marks were effaced from said ties. Wilson v. Chambers, Croke Car. 262, 79 Eng. Rep. Full Reprint, 828. That was not descriptive of the ties, but pleading a part of the evidence tending to establish the identity of the same.

Concede, however, that it was descriptive; the fact that the evidence did not tend to show that the ends of the ties alleged to have been taken were "sawed off, chopped off, or hammered off, so as to disfigure and efface the marks or brands of the plaintiff," but tended to show that the ends of the ties had neither been sawed, cut, or pounded out, and that the original marks or brands had been allowed to remain, and red paint daubed over the same, will not operate as reversible error under this record, for this unnecessary allegation was made at the instance of defendant. Having induced the lower court to require such amendment as he was not entitled to, he will not be permitted to profit in this court on account of an erroneous ruling induce by him in the lower court. Moore v. Atchison, T. & S. F. R. Co., 26 Okl. 682, 110 P. 1059.

Where a tort is averred and the substance of the allegation is proved, a variance is not material if the opposite party is not misled. 22 Ency. P. & P. p. 566, footnote 1. As a rule in such actions no fatal or material variance occurs by proof of a part only of the allegations of the pleading, provided that what is proved affords a ground for maintaining the action and corresponds with the allegation in that regard. Id. p. 568, footnote 1. But, in view of the conclusion hereinbefore reached, it is not essential to determine as to whether under the record there was a fatal variance under sections 5673 and 5674, Comp. Laws 1909; sections 4011 and 4012, Stat. Okla. Ter. 1893.

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