Cummings v. Gutridge
| Citation | 17 Mo. 469 |
| Parties | CUMMINGS, Respondent, v. GUTRIDGE, Appellant. |
| Decision Date | 31 January 1853 |
| Court | Missouri Supreme Court |
1. Where the defendant, in his answer, admits that he executed the note annexed to the plaintiff's petition, in manner and form as charged in the petition, he cannot make the objection of variance when the plaintiff unnecessarily offers the note in evidence.
Appeal from Henry Circuit Court.
F. P. Wright, for appellant. There was a variance between the note sued on and the petition. The court erred in permitting the note to be read in evidence, and in refusing defendant's first and second instructions.
Ballou, for respondent. The defendant, in his answer, admitted, by not denying the allegation of the petition, that, by the note thereto annexed, he “promised to pay plaintiff,” &c. This being so, the objection of variance was untenable. For the same reason, the defendant's instructions were properly refused.
This was a civil action brought by Cummings against Gutridge, upon the following promissory note:
“March 20th, 1850.
Six months after date, for value received, I promise to pay unto James Cummings' “ ares,” the sum of one hundred and sixty dollars, without “ dout” or defalcation or discount.”
Plaintiff's petition was as follows: “Plaintiff states, that defendant, by his promissory note hereto annexed, dated March 20th, 1850, promised, for value received, six months after date, to pay plaintiff the sum of one hundred and sixty dollars, without “ dout” or defalcation or discount; which said sum of one hundred and sixty dollars and the interest are yet due plaintiff, and for which he asks judgment.”
The defendant, in his answer, does not deny the making of the said note, but alleges it was given for a certain consideration, which has failed, and therefore he does not owe said note nor any part thereof.
On the trial, the plaintiff read the note; the defendant objected to its being read in evidence on account of the variance between the note sued on and the note offered in evidence. The plaintiff having read the note closed his case. The defendant then offered evidence showing the consideration of the note to have been for one half of a wagon and yoke of steers; and on the way to California, the wagon was left on the road, abandoned, and one of the steers died; that the wagon, on the plains where it was left, was worth nothing. The jury found for the plaintiff, not considering that the failure of consideration was made...
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