By the Court. It appears that during the years 1857 and 1858 the Plaintiff was engaged in picking up and rafting pine logs then lying in Lake St. Croix, and upon its shores, under -a written contract with certain of the owners of said logs, and that the Defendants, though not parties to said written contract, also had logs in the same condition, intermingled with the logs belonging to those for whom the Plaintiff was collecting and rafting.
The complaint alleges in substance the following contract with the Defendants, to wit: That in or about the month of June, 1857, the Defendants being partners, and as such the owners of logs in said lake, agreed with the Plaintiff that if he would collect and raft their logs in connection with the others he was then collecting, they would pay him therefor what it was reasonably worth, and would in lieu of the particular logs belonging to them, take their complement out of the general mass collected. This alleged contract the Defendants deny, and they allege by way of defence that when the Plaintiff solicited the employment of collecting and rafting their logs, they expressly notified him not to meddle with them unless he was willing to pay to them the sum of eight dollars per thousand feet for all the logs he should collect belonging to them. That under this authority alone he proceeded and *123collected and appropriated a large number of tbeir logs, for •which they claim to hold him liable — 'and they demand a judgment against him for the balance due them at this rate* after crediting him with the logs which they received from him, out of the general mass collected, at prices ranging from $3.50 to $6 per thousand feet.
Upon the trial the jury found a verdict for the Plaintiff. The Defendants moved for, and the judge ordered a new trial on the ground of a variance between the contract alleged in the pleadings and that proved on the trial. Prom this order the Plaintiff appealed, and the question for consideration here, is whether, under our practice, the alleged variance affords sufficient grounds for granting a new trial.
The verdict for the Plaintiff is equivalent to finding that the contract is as alleged in the complaint. The evidence in support of this finding, and which the jury must have found to be true, was the testimony of the Plaintiff himself. Tils statement is as follows:
“ The logs I was picking up in 1857 and 1858, were picked up for most of the log owners on the lake. In the spring of 1857 I made an agreement with one of the Defendants to pick up their logs. It was sometime in the month of May or June, 1857. I know it was about or after steamboats had come. It might have been early in May or June. It was down here on the lake in Stillwater — in this town. The agreement was made with McRea. I asked him to sign the contract I had for gathering the logs on the lake. He said Mr. Register was down the river and he did not want to do anything that would interrupt, or do anything that would meddle with Mr. Register’s business in the logging arrangements, as Mr. Register had the down river business, selling, etc. I think I told him I could not get along without taking their logs — that it would be a great expense to separate them — to take theirs out of the whole mass of logs — and he said I could take theirs in with the others, and they would take logs in exchange, and pay me what was right for picking up and rafting, and when Sam. (Register) came up he could suit himself about it, and if when he came, he was not satisfied about it, he could make different arrangements to suit himself.”
*124On cross examination tbe Plaintiff said:
“ I told him I was picking up, and it was a great deal of trouble to pick up some and leave others, and he said he did not want to be a stick in the way, and that I might go on and pick up and raft, etc. "When Sam got back, if he was not satisfied with it, he could fix it to suit himself.”
“ lie did not tell me ‘ That I could take their logs or not just as I chose, but I must take the chance of Sam’s being satisfied when he got home.’ He said I could take the logs and he would risk it until Sam got back.”
This is all the testimony tending to establish the contract alleged in the complaint, and the Defendants insist that the contract here shown is not the contract alleged, because of the right reserved to Register to make different arrangements on his return.
A variance under our. Statute is only deemed material when it shall actually have misled a party to his prejudice in maintaining his action or defence upon the merits. It is not sufficient for a party to allege merely that he has been so misled, it must be proved to the satisfaction of the court; and even then the court may order the pleading to be amended, on such terms as may be just. R. S. 340, Sec. 86. We perceive therefore that it is the policy of the law to relieve against variances, even where the party may have actually been misled to his prejudice.
We cannot see, however, that the alleged variance in this case misled the Defendants to their prejudice. The contract proved is in legal effect precisely like the one alleged, with the addition that it might be changed, or terminated by Register on his return. But this provision could make no difference so long as the contract remained unchanged, which we believe .was during the whole time the labor was being performed. It is not pretended by the answer that Register put an end to the contract, or modified it in any respect. On the contrary the entire contract is denied.
The Defendants do not appear to have offered any proof whatever to show that they were prejudiced in maintaining their defence. They did not even raise the objection until after they had submitted the case to the jury, and a verdict *125had been rendered against them. Had the objection been well taken, and urged in time, it might have been remedied without affecting the merits of the controversy. That rghich is merely technical and may be remedied on the trial in the discretion of the court ought not, as a general rule to be regarded after verdict. Courts will not encourage a party to lie by until it is too late to afford the remedy by amendment contemplated by the Statute.
This action,-in respect to'the contract under consideration, is simply to recover for the work and labor done and performed by the Plaintiff at the request of the Defendants. The proof is that one of the Defendants directed the Plaintiff to go on and perform the labor until his partner returned, and then if the arrangement was not satisfactory to the partner, he might fix it to suit himself. We are unable to perceive any difference in principle or legal effect, between the allegation and the proofs. If A direct P to work for him until further advised, it will hardly be maintained that P cannot recover for the value of such labor as he may have performed, before A notifies him to desist. Yet the claim of the Defendants involves a direct denial of this proposition.
We should also bear in mind that a variance between the pleadings and proofs is not among the enumerated cases for which a new trial may be granted. R. S. 359, Sec. 59. Every such objection may be relieved against without driving the parties out of court. It is only when the allegation to which the proof is directed is unproved, not in some particulars only, but in its general scope and meaning, that the objection becomes fatal. There is no such failure of proof here. The contract is substantially proved as alleged; and should a new trial be awarded, it would only send the parties back, to go again over the same ground, and, as there is no claim of newly discovered evidence, doubtless with the same result.
The order granting a new trial must therefore be reversed.