Under a count for money paid for the defendant, and a bill of particulars for "cash paid at request of defendant for setting case of A v. B," it appeared that defendant requested the plaintiff to pay $50 to G, an attorney, to procure a settlement of said case, that the plaintiff in pursuance of said request released to G a debt owed by G to him, and G accepted said release in payment of his services for defendant. Held that the variance as to the mode of payment was immaterial, and that the trial court properly refused to charge that the jury must render a verdict for the defendant.
If a cause of action is substantially stated in the complaint, defects in the mode of statement are waived by pleading a general denial and going to trial on that issue.
Where the issue is whether the defendant requested the plaintiff to pay G a certain sum for his services, the real value of the services of G is immaterial.
HAMERSLEY, J.
Upon (1) the defendant's requesting the plaintiff to pay, on behalf of the defendant and for his benefit, the sum of $50 to Goodhart in satisfaction of Goodhart's claim to that amount against the defendant, (2) the plaintiff's transferring, in pursuance of that request, the sum of $50 belonging to him to Goodhart, and (3) Goodhart's acceptance of the sum thus transferred in payment and satisfaction of his claim against the defendant, the law imposed upon the defendant the duty of reimbursing the plaintiff for the sum thus expended on behalf and for the benefit of the defendant, and upon the defendant's failure to perform this duty a right of action accrued to the plaintiff. This is the cause of action proved by the evidence of the plaintiff, and this cause of action is in substance alleged in the complaint as amended; its defective and faulty statement was waived by the defendant in denying the allegations of the complaint and going to trial upon that issue. It is evidence that while an actual payment to Goodhart of the sum of $50 may be matter of substance, the precise manner in which that payment was accomplished is immaterial. If the plaintiff in proving his actual payment to Goodhart of the sum of $50 did disclose a mode of payment differing from that described in his complaint, such a variance in proof is immaterial, and immaterial variances must be wholly disregarded. Rules under the Practice Act, III, § 6. The trial court, therefore, did not err in refusing to charge as requested by the defendant.
The exceptions taken to the charge as given furnished no ground for a new trial. Upon the issues joined, the value of the services on which Goodhart's claim was based was immaterial, and the court properly charged the jury that they must find an actual payment to Goodhart by the plaintiff and the actual amount so paid, but that the value of Goodhart's services was not in issue.
The other claim of the defendant, that the court omitted to sufficiently instruct the jury as to the questions of law arising upon the pleadings, the state of the evidence, and the legitimate claims of the parties, is plainly unsupported by the record.