51 Miss. 423 | Miss. | 1875
delivered the opinion of the court.
Suit upon a note dated at Mobile. The declaration describes the note as executed in the county of Jasper. The note was filed with the declaration. Defendant appeared and pleaded the gen eral issue. On the trial, objection was made to the introduction of the note in evidence, upon the ground that plaintiffs declared upon a note executed and payable in the county of Jasper, and state of Mississippi, whereas the plaintiffs offered in evidence a note executed and made payable in the city of Mobile, Alabama. This objection was overruled, and judgment followed for plaintiffs in the action. A bill of exceptions was filed, and the case brought to this court. The only question for adjudication is contained in the foregoing statement. The point made on the trial will be perceived to be on its face purely technical, yet it is not necessarily without merit. Upon it may rest a just defense. As required by statute, the note was filed with the declaration; but the note is no part of the declaration, and cannot be referred in aid of the pleading. Blackwell v. Reid, 41 Miss., 102. It is a general rule that a note or contract sued on must be properly described in the declaration (Pierce v. Lacy, 23 Miss., 193), or it will be rejected as evidence. Another general ,Brule is that the allegata et probata must agree. 2 Tuck. Com., 149; Drake v. Surget, 36 Miss., 458. The declaration is upon the note, and does not contain the common counts. The case last cited of Drake v. Surget was an ac" tion to recover damages for a breach of contract. The declaration contained four special counts, and setting out special contract. The contract proved varied materially in the opinion of the court from the one set out in the declaration. It was held, therefore, that the plaintiff was not entitled to recover. In the case at bar, the variance between the note described in the declaration and the one given in evidence consists, as seems, in this, that they agree in all respects except as to place of execution. Is this material? Although this question is one of apparent simplicity, involved perhaps only in a simple fiction, in pleading, it is esteemed to be, nevertheless, of practical importance, if this variance is matter
The former may be substantially proved, but the latter must be proved with a degree of strictness extending in some cases even to literal precision. No allegation descriptive of the identity of that which is legally essential to the claim or charge can ever be rejected. (1 Greenl. Ev., § 56.) In contracts, libels in writing, and written instruments in general, every part operates by way of description of the whole.
In these cases allegations of names, sums, magnitudes, dates, deviations, terms and the like, being essential to the identity of the writing set forth, must, in general, be precisely proved. (Id., § 58.) But, in general, the allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial and need not be proved strictly as alleged. (Id., § 61.) If the place in the case at bar is material, it is made so by the averments of the declaration by way of description.
Mr. G-reenleaf says (id., § 67), that there is a material distinction to be observed between the redundancy in the allegation and redundancy in the proof. In the former case a variance between the allegation and the proof will be fatal, if the redundant allegations are descriptive of that which is essential. The place of the execution of a contract may be of the first importance, and primarily essential. Allegations descriptive of deeds and records must be proved with great precision. (Id. §§ 69, 70). There is, however, says Mr. Greenleaf (id., 60), a middle class of circumstances, not essential in their nature, which may become so by being inseparably connected with the essential allegations. These must be proved as laid, unless they are stated under a videlicet; the office is to mark that the party does not undertake to prove the precise circumstances alleged, and in such cases he is ordina
The declaration in this case is not according to the precedents upon a like state of facts. 2 Ch. Pl., 114 and notes; Ch. on Bills, 582, and other cases herein. Stating the note in a special count only, the declaration describes a note variant from that offered in evidence, which according to the letter of general rules, is fatal. 1 Ch. Pl., 311 and notes; the note described is not the note proved ; a distinction is established between allegations of matter of substance and allegations of matter of description; the former require to be substantially proved, the latter must be litterally proved. Stoddart v. Palmer, 10 Eng. C. L., 4; 1 Greenl. Ev., supra. When place is alleged fas matter of description, and not as venue, it must in cases be stated truly and according to the fact, under peril of variance, if the matter should be brought into issue. Steph. Pl., 291; variance in the date of an instrument declared on is fatal, the date being matter of description. Drown v. Smith, 3 N. H., 299 ; Church v. Feterow, 2 Penn., 301; Bank etc. v. Simmons, 1 Harrington, 331; if described as dated and bearing date, when not dated, this is fatal. Grant v. Winn, 7 Mo., 188. And the same rule is stated in Fairfield v. Adams, 16 Pick., 381. In the latter case, the note sued on bore no date of place, but the declaration described it as dated at Boston. A statute of that state allows damages on inland bills of exchange varying at different distances. The court say : “ It happens that the bill bears no date place; there is therefore no variance in this respect between the bill and count. Had it been in fact dated at Saco, where it was probably drawn, it would have been proper to
If the record in this case furnished evidence of a defense on the merits, dependent upon the question presented, the conclusion reached would be more satisfactory. The absence of evidence of such other defense has created some doubt as to the proper rule to declare, nevertheless, the safe course is believed to be, to hold the variance, between the declaration and the proof, fatal, the objection having been made at the proper time.
Power to amend upon objections was ample. And, however unnecessary, in the opinion of counsel, an amendment obviating the objection taken was certainly the course of prudence and safety. Indeed, it would be well, if, in such cases, circuit judges would, on their own motion, order amendments, especially when, if they are not essential, they are harmless.
Judgment reversed and cause remanded, with leave to plaintiff to amend his declaration.