Nichols & Shepard Company v. Dedrick

Decision Date02 July 1895
Docket Number9343--(182)
Citation63 N.W. 1110,61 Minn. 513
CourtMinnesota Supreme Court

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., granting plaintiff's motion to amend the complaint and denying defendant's motion for a new trial. Affirmed.

This disposes of all the questions in the case worthy of consideration, and the order appealed from is affirmed.

W. H Cutting, for appellant.

Marshall A. Spooner and Armstrong Taylor, for respondent.



In the complaint in this action the plaintiff, a corporation alleged that defendant made and delivered to it his promissory note, dated March 25, 1893, whereby he agreed to pay to its order the sum of $ 312 on November 1, 1893. Defendant in his answer alleged that in September, 1892, one Pohl executed his note to plaintiff, and secured it by a chattel mortgage on certain described personal property; that this note came due, and Pohl failed to pay the same, and thereafter "made and executed the note alleged in the complaint herein, and this defendant signed the same as surety"; and that the only consideration for the signing of said note by defendant was the agreement of plaintiff to transfer to him said note so executed by Pohl alone "secured as aforesaid"; and that plaintiff has failed to carry out its contract and transfer said last-named note to defendant. On the trial, plaintiff offered in evidence the joint and several note of defendant and Pohl corresponding in all other respects to the note described in the complaint. This note was received in evidence against defendant's objection and exception that it was inadmissible under the pleadings. Plaintiff had a verdict. Defendant moved for a new trial, which was granted, on the ground that it was error to receive said note in evidence, for the reason that the same is a material variance from the cause of action set up in the complaint. Thereupon plaintiff made a motion for leave to amend its complaint to conform to the facts proved, for a rehearing of said motion for a new trial, and that said motion for a new trial be denied. This motion was in all respects granted, the amendment to the complaint was allowed, the order granting a new trial set aside, and a new trial denied. From this order defendant appeals.

1. We are cited to no authority which holds that proof of the joint and several note of the defendant and a third party is a material variance from a cause of action on the separate note of the defendant. We are of the opinion that it is not such a variance, at least when it appears that the defendant is not surprised or misled thereby, which sufficiently appears in this case.

2. There is evidence tending to prove that, as a consideration for the making of this note by defendant and Pohl, the plaintiff agreed to extend the time of payment of the...

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