Mason v. Burleson
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 85 |
| Parties | MASON v. KLEBERG AND BURLESON. |
| Court | Texas Supreme Court |
The rule in actions upon contracts that if any part of the contract proved should vary materially from that which is stated in the pleadings, the variance will be fatal. (Note 19.)
It is never necessary to state all the parts of a contract which consists of several distinct and collateral or alternative provisions; the gravamen is that a certain act which the defendant engaged to do has not been done; and the legal proposition to be maintained is that for such a consideration he became bound to do such an act, including time, manner, and other circumstances of its performance; and with all the propositions thus stated the proof must agree.
Redundancy of proof is immaterial unless the facts proved, but not alleged, are inconsistent with the allegations.
It is a universal rule that it is sufficient to prove an allegation according to its legal effect; and where a pleading professes to describe an instrument, not by its tenor, but by its legal effect, it is competent to prove it by one which corresponds in legal effect.
An allegation that a note was payable to A is sustained by the production of a note payable to A or bearer.
Appeal from Austin. The appellant brought suit against the appellee upon two promissory notes alleged to have been made by the defendant Kleberg, payable to the defendant Burleson, and indorsed to the plaintiff. The notes are described in the petition according to their legal effect.
From a bill of exceptions in the record it appears that at the trial a jury was waived and the case submitted to the court. The plaintiff offered in evidence two notes corresponding to those described in the petition, but the defendant objected to their introduction, upon the ground of a variance between the notes described and those offered in evidence; the notes described being payable to Burleson, whereas those offered were payable to Burleson “ or bearer. ” The court sustained the objection, rejected the evidence, and gave judgment for the defendant, from which the plaintiff appealed.
Rivers, for appellant. In this case the note sued on was described as payable to John Burleson. The note offered in evidence was payable to him or bearer. The reading of the note was objected to as variant from the one described in the petition, and the objection was sustained. The holder of a note payable to bearer may declare on the same as payable to himself.
The only question presented for consideration is that raised by the bill of exceptions, as to the variance between the notes described in the petition and those given in evidence.
The rule in actions upon contracts is that if any part of the contract proved should vary materially from that which is stated in the pleadings, the variance will be fatal; for a contract is an entire thing, and indivisible. (1 Greenl. Ev., 75.) And the question here is whether there is any material variance between the contract described and that proved.
It is never necessary to state all the parts of a contract which consists of several distinct and collateral or alternative provisions; the gravamen is that a certain act which the defendant engaged to do has not been done; and the legal proposition to be maintained is that, for such a consideration, he became bound to do such an act, including time, manner, and other circumstances of its performances. And with all the propositions thus stated the proof must agree. (Ib.) But a redundancy of proof is immaterial, unless the facts proved, but not alleged, are inconsis...
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...Mut. Benev. Ass'n v. Franklin, Tex.Com. App., 50 S.W.2d 264, 266; Wooters v. International & G. N. Ry. Co., 54 Tex. 294, 299; Mason v. Kleberg, 4 Tex. 85, 87; Cox v. Bankers' Guaranty Life Co., Tex.Civ. App., 45 S.W.2d 390, 392; American Nat. Ins. Co. v. Green, Tex.Civ.App., 96 S.W.2d 727, ......
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...from that which is stated in the pleadings, the variance will be fatal, for a contract is an entire thing and indivisible." Mason v. Kleberg, 4 Tex. 85, 86, 87. Had the defendant in this case relied alone on his general denial and plea of accord and satisfaction, the rule just recited would......
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