Alvord v. Moffatt

10 Ind. 366 | Ind. | 1858

Per Curiam.

This was an action by Mrs. Moffatt, against the members of the Western Stage Company, to recover the value of a trunk and contents, alleged to have been lost by said company, in their character as common carriers. The plaintiff recovered below.

The points relied on here to reverse the case, are, that the evidence does not sustain the judgment, and that it discloses a fatal variance. We think the evidence tends to sustain the verdict. The variance is this: the declaration alleges that the trunk was received by the company to be conveyed to Charlestown, Illinois. In speaking of the place, some of the witnesses call it Charleston, and the company prove that their line of stages was to Charleston; but the evidence shows the place designated Charleston, to be in Coles county, Illinois, and the place designated Charlestown, to be in the same county, and that the line of stages on which the trank was placed, ran to Charleston, and Charles-town, in that county, and that there was but one line running. The evidence shows that both sets of witnesses referred to the identical place. And we think the two words are idem sonans. It has been held by this Court that Beck-with and Beckworth are idem sonans; so of Adanson and Adamson; ivas pans and wash pans. 4 Blackf. 288. — Id. 171. — 7 Id. 325. ⁽¹⁾

C. Y. Patterson and I. P. Usher, for the appellants.

The variance could have been obviated by amendment below, and may be here.

The judgment is affirmed, with 5 per cent, damages and costs.

(1) See, also, 8 Ind. E. 18, Conn and Corn.