¶1 (concurring in result).
¶2 I concur with the result and generally I have no objections to the reasoning in the prevailing opinion. I think that Sections 104-14-1 and 2, U. C. A. 1943, expressly provide that in this type of case the court may do just what was done here and therefore there is no reason to rely on Section 104-14-3, U. C. A. 1943 quoted in the prevailing opinion. The latter section is merely a general statute on amendments but these other sections deal with this exact situation. I also think there is no occasion to require that this type of objection be raised early in the proceeding. This was an immaterial variance between the pleading and the proof. In such case, under our statutes it should make no difference whether this type of objection was raised early or late in the proceeding or not at all. Clearly the pleadings were sufficient to confer jurisdiction on the court and to sustain a judgment and therefore it was the duty of the court to find the facts in accordance with the evidence whether such objection was raised or not. Under the above mentioned *353 statutes, the court could either disregard the objection or allow an amendment no matter when the objection was raised.
¶3 Section 104-14-1 and 2, which I have rearranged because both of them deal with the same subjects, and from which I quote from both in the same sentence without changing their meaning, provide that:
“No variance between the allegations and the proof is deemed material unless it has actually misled the adverse party to his prejudice,”
¶4 and that where
“the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars but only in its general scope and meaning it is not to be deemed a case of variance but a failure of proof,”
¶5 however in cases
“where the variance is not material … the court may direct the facts to be found in accordance with the evidence, or may order an immediate amendment,”
¶6 but when
“it appears that a party has been misled, the court may order the pleadings to be amended upon such terms as may be just.”
¶7 These provisions in substance provide: That a variance between the allegation and proof is not material unless it has actually misled the adverse party to his prejudice. That in order to have a failure of proof there must be more than a failure to prove the allegation in one or more particulars, there must be a failure to prove the allegation in its general scope and meaning. That in case of an immaterial variance, the court must find the facts in accordance with the evidence and may in its discretion, order an amendment to conform with the proof. However, even in cases where there is a material variance, that is where the adverse party has actually been misled, the court may still allow an amendment but in doing so it must see that the party who has been *354 misled by the pleadings must be given a full and fair opportunity to prepare and present his case.
¶8 Here the plaintiff alleged only that he was entitled to the immediate possession of the property in question but the proof showed that he was the actual owner thereof. The court allowed an amendment to conform with the proof. There is no claim that plaintiff was actually misled by this variance, nor is it claimed that there was a failure of proof. What the defendant claims is that the allegation of right to immediate possession is an allegation not of the ultimate fact but is a mere conclusion of law and therefore the action must be dismissed because the complaint, without the amendment does not state facts sufficient to constitute a cause for action. There are cases which hold that a general allegation of ownership is an allegation of the ultimate fact, but that such an allegation of the right of immediate possession is merely a conclusion of law. The dividing line between an allegation of an ultimate fact and a conclusion of law is often very indistinct and hard to determine. In reality there is no definitely defined difference between the two but the difference is only in degree. The test usually is whether the adverse party is sufficiently informed of the nature of the claim which is made against him. In principal these two allegations are of exactly the same nature. Here the defend- and could not be and was not misled by this allegation. Under such circumstances, the court did just what the above statutes direct.
¶9 Had the defendant claimed that he had been misled it was his duty to make that claim as soon as the fact became apparent to him. But where, as here, he has not been misled, it is immaterial whether he makes his objection early or late, because it is the duty of the court under those statutes to find the facts in accordance with the proof and may or may not allow the amendment. Since this objection was made and it was claimed that the complaint did not allege facts but mere conclusions of law, it was appropriate for the court to allow the amendment.