Nickels v. Gilmore
| Decision Date | 26 March 1927 |
| Docket Number | (No. 9926.) |
| Citation | 293 S.W. 884 |
| Parties | NICKELS v. GILMORE. |
| Court | Texas Court of Appeals |
Bailey & Bailey, of Dallas, for plaintiff in error.
Turner & Rodgers and C. R. Winn, all of Dallas, for defendant in error.
I. L. Gilmore recovered judgment in the court below against J. A. Nickels on the last two of a series of nine notes for $250 each, executed by the defendant, from which this appeal by writ of error is prosecuted.
1. By appropriate assignments and propositions, plaintiff in error contends that there was and is a material and fatal variance between the allegations and proof, in this, that the petition described the notes as payable "to the order of I. L. Gilmore," whereas the notes offered in evidence were payable
The variance complained of could not, in our opinion, have either misled or surprised plaintiff in error, for this, it clearly appeared from his pleadings that the notes were executed in part payment for certain gin machinery, the facts with reference to which were alleged in rather extended detail, showing a perfect familiarity with the transactions out of which the notes grew and with the notes themselves.
In the rather recent case of Fowler v. Land, 248 S. W. 314 (approved by the Supreme Court), the Commission of Appeals, in unison with prior holdings of our appellate courts on the subject of variance, said:
"Besides, to constitute a variance the difference between pleadings and proof must be such as to mislead or surprise; and the evidence in the case clearly shows that defendant in error was neither deceived nor surprised by the alleged variance."
To the same effect are Bank v. Stephenson, 82 Tex. 435, 18 S. W. 583, Jones v. Davis Motor Car Co. (Tex. Civ. App.) 224 S. W. 701, and Jaco v. Nash (Tex. Civ. App.) 269 S. W. 1089, 1092.
The language written after the name I. L. Gilmore, is merely a description of the person. However, there does arise from the disconnected language, to wit, "The Republic National Bank of Dallas, Texas," written after the name of the payee, an apparent ambiguity, but this, in our opinion, readily vanishes. Nowhere in the pleadings or evidence is there an intimation that the Republic National Bank had any interest in the notes, or was connected in any way with the execution of the notes or the transactions out of which they arose. We are of the opinion, therefore, that the bank was mentioned simply as the place of payment, and that the notes should be read as if written payable to I. L. Gilmore, Mgr. Neverchoke at the Republic National Bank...
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