The opinion
Denied December 8, 1914.
On Petition for Rehearing.
( 143 Pac. 1199 .)
Department 2. Mr. Justice McNary delivered the opinion of the court.
In an application for a rehearing, counsel for defendant suggests a diminution of the record, “in con *346 nection with, the bill of exceptions as heretofore furnished,” and in support thereof attaches an affidavit of the official reporter, wherein “it is shown that defendant stated that he had been misled by the variance in the description between the allegations in the complaint and proofs submitted thereon.” It is disclosed by an inspection of the stenographic notes that counsel at the trial of the case pointed out to the court wherein he avowed his client had been misled in making -his defense. It may well be doubted, if the mere declaration of counsel that his client has been misled to his prejudice is sufficient, even the counsel in his recital comprehends the entire scope of the seeming variance. If the variance between the pleading and the evidence offered is such as is calculated upon its very face to mislead the party, such as the court must have understood as meaning something else than that which is offered in proof, the evidence ought to be rejected; but if the materiality of the variance is not obvious and apparent, the evidence should not be excluded, unless the party objecting thereto will satisfy the court that he has been misled thereby. This aspect cannot be met by the mere statement of counsel that his client has been misled; but counsel must go further and prove to the satisfaction of the court, by affidavit or oral testimony, in what respects his client has been surprised and actually misled to his prejudice in maintaining his action or defense upon the merits: 31 Cyc. 703; Allen v. Bunting, 18 N. J. Law, 299. At all events, as stated in the original opinion, we cannot say that the variance was a material one, in that it did not affect the gist of the action as alleged in the complaint. Rehearing Denied.