64 Tex. 53 | Tex. | 1885
The demurrers to the amended petition were properly overruled. It was no objection to it that it set up a new cause of action. This merely subjected the plaintiff to the payment of all costs of the suit as originally brought and admitted all defenses that might have been set up to the new cause of action, if suit had been originally commenced upon it at the date of filing the amendment.
As to the other objection, the defendants had pleaded that the plaintiff was not entitled to judgment upon the note originally sued on. They claimed that they were not liable upon it because delivered before being signed by as many sureties as had been agreed on between themselves, the plaintiff and their co-defendant. This was denied in the amended petition, but prayer was made that, in the event the appellee was not entitled to judgment upon the note set up in the original petition, recovery might be had upon the note first executed and for which the other was intended as a substitute. It is no objection, under our system, to a petition that" it asks alternative relief of this nature, if each character of relief sought is appropriate to the pleading in the cause. So much for the demurrers.
Hpon the trial of the cause, the plaintiff proved that the note first given was taken in full payment of horses purchased by the principal in the note from T. H. Barron’s estate, and that if anything passed between the several makers of the note tending to affect the liability of the sureties, it was not known to the administrators of that estate. In fact there does not seem to have been any fact proved that would affect their liability upon that particular note. There was some conflict in the evidence as to the circumstances under which the second note was given. The defendants offered facts tending to release them from liability on that note. The plaintiff introduced evidence tending to establish their liability. The judge seems to have taken the view of the defendants as to this note, and held that they were not liable on it. This, under the evidence, left the first note in full force and effect, and the plaintiff was entitled to recover on it.
The variance, made the subject of a bill of exceptions, seems to be a very immaterial one. It arises from leaving out of the petition
This court held in the case of McClelland v. Smith, 3 Tex., 210, that, to constitute a fatal variance, the misdescription must be such as to mislead or surprise the adverse party, otherwise it should be disregarded by the court. This is held to be the rule even where the plaintiff has, as in this case, assumed to give an exact copy of the note. The same stringent rule as to variance, it is said, does not obtain in this country as is enforced in the English courts.
In acordance with this decision —and not in opposition to it — is the case of Shipman v. Fulcrod, 42 Tex., 248. There the variance was in the initial letter of the middle name of one of the makers of the note. The petition styled the makers, “S. W. Walker and E. M. Shipman.” The note produced in evidence was signed by S. P. Walker and E. M. Shipman. The defendant Shipman objected to the admission of the note for this variance, and stated in his bill of exceptions that S. P. Walker and S. W. Walker were different men; and that the notes were not the same, but different instruments; and that he had a good and valid defense to the note signed by S. P. Walker and E. M. Shipman. It was apparent, therefore, that the admission of one note due from the defendant under a suit upon another note due from him was calculated to mislead and surprise him, and this brought the case within the rule of McClelland v. Smith, supra. A defendant called upon and preparing himself to defend one demand cannot have a different one sprung upon him at the trial, and is justly entitled to claim the variance under such circumstances. Besides the variance there was in the name, and hence in a matter in some measure descriptive of the note sued on. Hone of the authorities cited to sustain the opinion of the court are cases of such immaterial variance as the present discloses, but relate to a • variance in the sum, magnitude, date, duration or terms of the note of an important character. We think the court did not err in admitting the note in evidence.
As to the costs, the court seems to have properly adjusted them;
Affirmed.
[Opinion delivered April 24, 1885.]
