Dailey v. Sharkey

• Decision Date: 28 February 1888
• Parties: CHARLES DAILEY, Respondent, v. F. J. SHARKEY, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 518

CHARLES DAILEY, Respondent, v. F. J. SHARKEY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Affirmed.

DAVID MURPHY, for the appellant: The note offered in evidence is made payable at the Mullanphy Savings Bank, while the one declared on does not mention any place of payment; the allegata and probata, therefore, do not correspond. And so with the proof of demand, the proof, and the finding of the court is, that no demand was made on John Sharkey, as averred, but on the cashier of the bank. Price v. Railroad, 72 Mo. 423; Faulkner v Faulkner, 73 Mo. 327. The defence of former recovery is pleaded and sustained by proof offered by the defence. The cause of action against these defendants is merged in the judgment. It has lost its vitality as a note, so far as this record shows, and another judgment cannot be had against either of the judgment debtors under the pleadings and the proof in this case. Cooksey v. Railroad, 74 Mo. 77.

A. M SULLIVAN and FRANK K. RYAN, for the respondent: The court properly excluded the justice's transcript. Deshon v. Liffler, 7 Mo.App. 595. The omissions in the petition of an allegation of presentment and demand of payment " at the Mullanphy Savings Bank," does not, on the record here presented, constitute a material variance. Gen. Stat., secs. 3565 to 3570, inclusive, and sec. 3583. An affidavit setting forth in what respect a party has been misled, is the only test under our statute of the materiality of the discrepancy between allegata and probata. Turner v. Railroad, 51 Mo. 501; Fisher v. Max, 49 Mo. 404. No objection was made by the appellant to the introduction of the note upon the ground of the want of such an allegation; but upon the sole ground that the allegata and probata differed. Under such circumstances it is the duty of the appellate court to refuse a reversal upon this ground. Gen. Stat., sec. 3586; Henslee v. Cannefax, 49 Mo. 295.

OPINION

ROMBAUER J.

This is an action upon a promissory note for three hundred dollars, by the holder against the endorser. The execution of the note and endorsement are admitted. Two defences are interposed, want of presentment for payment and notice of dishonor, and a former recovery.

Upon the trial of the cause before the court without a jury, there was judgment for plaintiff. The defendant, appealing, assigns for errors that there was a failure of proof, and that the court erred in not sustaining his plea of former recovery.

The first exception arises under the following facts: The note sued on was payable, by its terms, at the Mullanphy Bank, and there was testimony tending to show that payment was demanded there at maturity and refused, of which fact the defendant was notified. The petition states that personal demand was made of the maker, and when the plaintiff offered to prove a demand at the bank, the defendant objected on the ground of a variance between the allegation and proof.

Proof of demand at the bank was sufficient to hold the...