Brace v. Doble

Citations

• 3 S.D. 416
• 53 N.W. 859
• 1892 S.D. LEXIS 89

Syllabus

<p>1. Where, upon the trial of a ease, evidence is offered pertinent to the matter in controversy, but inadmissible because outside the issues as made by the pleadings, and such evidence is admitted and retained without objection in any form until after judgment, it is then too late to raise the question of variance.</p> <p>2. A complaint alleged full performance by plaintiffs. The answer denied. On the trial plaintiffs offered evidence tending to show facts which would excuse performance by plaintiffs, which was admitted without objection by defendant, and tiie case submitted, without objection or challenge of any kind, until after judgment. Held, it not being claimed that there was a failure of proof, that it was then too late to make the objection that the proof varied from the allegation.</p> <p>3. Section 4934, Comp. Laws, seems intended to cover the whole subject of variance between proofs at the trial and the allegations of the pleadings, and provides the only way in which such a variance may be taken advantage of.</p> <p>(Syllabus by the Court.</p>