Horn v. Hamilton

Citations

• 89 Cal. 276
• 26 P. 833
• 1891 Cal. LEXIS 811

Syllabus

<p>Monet had and Received—Collection of Note by Attorney — Negligence—Variance in Proof—Trial by Consent — Waiver of Objection — Benefit of Defense. — Where the complaint is for money had and received by the defendant for the plaintiff, upon the theory that as defendant had, as plaintiff’s attorney, surrendered a note intrusted to him for collection, to be canceled as paid, he might be charged as for a collection, and the answer denies the collection, and pleads plaintiff’s consent to the surrender of the note, if the case is tried and submitted as though the issue were whether the defendant had failed to collect the note through negligence, the defendant cannot, upon appeal, object that the trial was not in accordance with the issue tendered by the complaint, he having had the full benefit of the defense that the debt could not have been collected.</p> <p>Pleading — Sufficiency of Complaint — Variance — Objection Cured by Verdict.—Objections to the sufficiency of a complaint to support the proof cannot be made after a verdict is rendered upon the trial of the case, if the complaint is sufficient to support the judgment.</p>