3 Tex. 210 | Tex. | 1848
delivered the opinion of the court,
This suit was brought on two notes described in the plaintiff’s petition, as follows, that is to say: “ The first was described as a “ certain instrument in writing, commonly called a promissory note, and now in court to be produced by him, by the name and description of J. M. Smith, subscribed, promised petitioner by the name and description of Sam’l K. McClel-land, to pay him or order three hundred dollars to be paid in horses and cattle; the horses at whatever price might be agreed upon, and the cattle at $10 for cows and calves, on or before the first day of June, 1845; ” and the second note was described as follows: “a certain other instrument in writing commonly called a promissory note, and now in court to be produced by him by the name and description of J. M. Smith, subscribed and sealed, for value rec’d promised petitioner by the name and description of Sam’l K. McClelland to pay him or order, on or before the 25th Dee., 1846, one hundred and twenty dollars and seventy-five cents.” On the trial two notes were offered in evidence by the plaintiff, and objected to by the defendant. The objection was sustained by the court, on account of a variance. The plaintiff excepted to the decision of the court in the rejection of the notes. There was a verdict for the defendant, and judgment, from which the plaintiff appealed. The notes offered in evidence were supposed not to be sufficiently described, in this, that the name of the payee in the note is written Sam’l K. Molelland, instead of Sam’l K. McClelland, as written in the petition.
The appellant insists that the variance is not material, and that the court below erred in ruling the notes out. He referred to several authorities to show that in similar cases the objection was not sustained. There can be no doubt that in the English courts the rule as to a variance between the cause of action declared on, and the evidence, is much more rigidly enforced than in most of the state courts in our own country. It is, however, believed that the rule is greatly relaxed in England from its former stringency. In the case of assumpsit by the
The case of East Boston Timber Comp. vs. Persons et al. [2 Hill, 126] was an action of replevin. The defendants avowed for rent in arrear, under a parol demise of certain premises, at the yearly rent of $500, payable at the end of the yea/r. By the court: “ Under the rule that formerly prevailed, there can be no doubt this was a fatal variance, such as would have overturned' a well founded action or a good defense; but a more liberal rule now prevails; and as the judge was satisfied that the variance was not calculated to mislead or surprise the plaintiff, he was quite right in disregarding it.” See, also, Bower vs. Argale [2 Wendell, 502]. There are many other cases that might be referred to on this subject; we do not, however, deem it necessary to examine them; our object has been to ascertain, if possible, whether the decisions had established any principle on which we could repose in disposing of the question of variance in the multiform aspect in which such misdescriptions may be presented. We believe the above authorities resolve into this principle; that if the misdescription will tend to mislead and surprise the adverse party, it should be noticed by the court/ if not, it may be disregarded. This is believed to be a reasonable and sensible rule — one that cannot work an iujury to either party, and eminently calculated to harmonize the administration of law with the justice of the case. Let us now apply this principle to the case before us. The name of the payee of the note is spelt in the petition with the letter 0, as commencing the second syllable of the name; in the note offered in evidence, the second syllable commences with the letter L. In oi’dinary conversation, it seems, the sound would be the same with either letter; but when carefully sounded, a discriminating ear would be sensible of the difference. As an evidence that by the sound
The counsel for the appellee has been very ingenious in endeavoring to show that there is another misdescription in the note that was to be paid in stock. It is supposed to be in this: the petition, in stating the substance of this note, places the date of payment at the end of his description, when it is placed in the note at the commencement — say a on or before;” we cannot, however, regard his remarks in another light than a criticism on the composition of the petition; and although the criticism may be very just, yet, as a conclusion in law, it is not sound. The plaintiff has not assumed to give an exact copy of the note; and even if he had, the misdescription could not have deceived the defendant. The description was coi’rect as to date, the mode of payments, and the parties. The petition, though substantially good, is certainly obnoxious to criticism in this: that it endeavors to engraft the forms known and peculiar to a different system, on the plain and simple matter of fact petition established as the practice in our courts. We know nothing of counts in our practice; they belong to declarations at common law; our petition should not be marred in its simplicity by an attempt to introduce such terms. The petition in this case is too much like a common law declaration.. I am aware that the very respectable gentleman who framed the petition is not more faulty in this respect than many others equally respectable. Our constitution and laws repudiate the fictions, and many of the forms, of the common law courts; and the sooner the gentlemen of the profession can adapt their practice to our own system, the better; it is what they will have to come to, sooner or later. Our petition was designed to be a
The judgment is reversed, and the cause remanded, with instructions to the court below to award a venvre de novo.