| Tex. | Jul 1, 1857
Defendant in error brought suit against plaintiffs in error on a note for the sum of three hundred and fifty-six dollars. Plaintiffs in error answered, among other things, “ that they are not jointly or severally indebted to the said plaintiff as charged in said plaintiff’s petition in this cause.” Upon the trial the plaintiff below read in evidence a note ; to which defendants below objected, because the note was different from that sued on in amount, it being, as contended, for three hundred and fifty-five dollars ; which objection being overruled, the ruling was excepted to.
A verdict having been rendered for plaintiff below, defendants below moved for a new trial, because the verdict was contrary .to the law and evidence ; which being overruled,
The amount in figures in the margin of the note is “ $355.” The amount in the body of the note was first written three hundred and fifty-six and afterwards changed into three hundred and fifty-five. The changed word might well be taken for the word fix, if that wbuld make sense. It is plainly not six, and with a little liberality towards a clumsy correction in writing, it may.well be taken for five, so as to correspond with the figures. After a full inspection, there remains very little doubt but that it was designed for the word five ; and so the jury believed, as may be ascertained from the amount of their verdict. There was no testimony explaining the peculiarity of the handwriting, nor was there any averment in the pleading indicating it to be a word of doubtful import and expressing, by-inuendo, its true meaning. (See Chitty on Bills, 565.) It could be admitted as evidence to prove the averments of the petition upon no other supposition than that the word was “ six.”
The rule in actions upon contracts is, that if any part of .the contract proved should vary materially from that which is stated in the pleadings, the variance will be fatal. (Mason v. Kleberg & Burleson, 4 Tex. R. 85 ; Hunt v. Wright and wife, 13 Tex. R. 549 ; 1 Starkie’s Ev. 446, (*447.) Where only the substance is professed to be given, it is held that “ in general a description of an instrument contrary to its legal effect will be fatal.” (1 Stark. Ev. 483 (*484;) Chitty on Bills, 464.) A variance in the amount of the note or bond sued on will be fatal, (Pillie v. Moliere, 7 Mart. R. 341 ;
The question to be determined then is, was the word six, as alleged in the petition ? if not, or if it was not intended for it, or some other word whose legal effect would be the same, it is a variance, and the note should have been excluded as readily as if the amounts had varied one hundred dollars instead of one. The Court admitted it as a note for three hundred and fifty-six dollars, and the jury acted upon it as a note of three hundred and fifty-five dollars, without any explanatory evidence to change the character under which it was ad-' mitted. If a difference of one dollar could constitute a variance, it existed in this case^ That point was r%ised in the case of Pillie v. Moliere, above referred to from Louisiana, and it was held that a difference of a few cents constituted a fatal variance. We think the Court erred in. admitting the note, and the judgment is reversed and cause is remanded. -
Reversed and remanded.