Lilly v. Baker

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: Lilly v. Baker, 88 N.C. 151 (N.C. 1883)
• Decision Date: 28 February 1883
• Parties: E. J. LILLY v. M. A. BAKER.

88 N.C. 151

E. J. LILLY

v.M. A. BAKER.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J.

The plaintiff brought this action against W. B. Surles, A. J. Kivett and M. A. Baker, and alleges:

1. That on the 19th of May, 1877, the defendant, Surles, by his promissory note promised to pay said Kivett on the first of January, 1878, the sum of five hundred and four dollars, with interest at eight per cent. from date.

2. That Kivett endorsed the same to defendant, M. A. Baker, who endorsed it to the plaintiff.

The defendant denies each of the allegations of the complaint.

The plaintiff put in evidence the instrument sued on, which is as follows: On demand, the first of January, 1878, I promise to pay A. J. Kivett or order five hundred and four dollars, for value received of him, at eight per cent. interest--dated May 19th, 1877, and signed and sealed by the defendant Surles. It was endorsed first by Kivett and then by Baker.

The plaintiff testified that he received the note in its then condition from Kivett, and that the signature of Baker was in his own handwriting.

The defendant introduced no evidence, but asked the court to instruct the jury that there was a material variance between the complaint and the evidence, and therefore the plaintiff was not entitled to recover. This was refused, and the jury were told that if they believed the evidence, to find for the plaintiff. Defendant excepted.

Verdict for plaintiff; judgment; appeal by defendant Baker.

Mr. George M. Rose, for plaintiff .

Messrs. Hinsdale & Devereux, for defendant .

ASHE, J.

The exception taken by the defendant that there was a material variance between the complaint and the evidence, cannot be sustained in any view of the case. It is not sustainable upon the ground that the complaint sets forth that the instrument sued upon was a promissory note, and that put in evidence was a bond, for such a variance is not material in this case.

Section 128 of the Code provides that “no variance between the allegations in the pleading and the proof shall be deemed material, unless it shall actually have misled the adverse party to his prejudice in maintaining his action upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the judge may order the pleading to be amended upon such terms as shall be just.”

Here, there was no pretence on the trial that the defendant had been misled by the variance between the complaint and the evidence in this respect. The defendant knew that the note sued on was that given by Surles to Kivett and endorsed by him and the defendant: the amount, the date, and time of its maturity were all specially set forth, so that there could be no mistake as to the identity of the instrument; and it was not pretended that any other note, of like or any other amount, had ever been given by Surles to Kivett and endorsed by him and the defendant. If it had been shown on the trial that a promissory note had been given under similar circumstances, then there might have been ground for complaint by the defendant, that he was misled.

Nor do we think there is any more force in the ground pressed in the argument before this court, that the variance consisted in describing the defendant, Baker, as endorser, in the complaint, when the proof showed he was not an endorser.

It is well settled that where a note is endorsed in blank, by simply writing the name of the endorser upon the back of the note, the holder has authority to make it payable to himself or any other person, by filling up the blank over the signature. Parsons on Notes and Bills, 19. But he is not at liberty to write over the blank endorsement any words which shall change the liability created by law upon the endorser, or at least none which shall not be in exact conformity to the agreement under which the endorsement was made by the endorser to the endorsee. Story on Promissory Notes, § 138. In such case the agreement or understanding of parties is always open to proof; but where there is no...