Warne v. Anderson

• Decision Date: 31 May 1841
• Parties: WARNE v. ANDERSON & THOMPSON.
• Court: Missouri Supreme Court

7 Mo. 46

WARNE

v.ANDERSON & THOMPSON.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

J. B. KING, for Appellant. The judge of said St. Louis Circuit Court erred in permitting the said appellees, by their counsel, to amend their declaration, and then gave judgment for them without continuing said cause at the said trial thereof, when said amendment was made The Circuit Court erred in not granting a new trial to the appellant, when moved so to do for the reasons filed; and then permitted the appellees to again amend their declaration by their counsel, to avoid the operation of the variance apparent on the face of the declaration. The Circuit Court erred in giving judgment for the appellees, as there was no proof that the appellant had accepted said bill of exchange in writing, signed by himself or his lawful agent. See Mo. Digest, p. 97, on the subject of Bills of Exchange, § 1.T. B. HUDSON, for Appellees. 1st. That the amendment made on the trial of the cause below, was of an immaterial allegation, and might have been stricken out of declaration as surplusage. 2nd. That if the supposed variance was material, the defendant below should have taken advantage of the variance in a different manner, and it was too late to insist upon a formal objection after the plea of the general issue. 3rd. That the defendants made no objection to the offering in evidence the bill of exchange on the trial in the Circuit Court, and after it was offered and read, it was too late to urge any objection to the same on the ground of variance. 4th. The bill of exchange was accepted in writing, and signed by the defendant below; this is sufficient evidence of the acceptance, and will bind the acceptor unless he deny the same on oath. The counsel for appellees insist that it is not necessary in an action against an acceptor, to prove the acceptor's hand-writing, unless the same be denied on oath; and according to the Statute of Missouri, there is an express provision that all instruments purporting to be signed by any person to be bound thereby, shall be taken to be signed by such person, until such signature be denied on oath. See Rev. Code, 463. 5th. In this case there is an acceptance in writing signed by the party, in accordance with the provisions of the statute on the subject of Bills of Exchange. See the bill of exchange set out in the bill of exceptions. Rev. Code, 97. 6th. The courts of this State have a right to amend any writ of proceeding in any cause, either in form or substance, upon such terms as the courts may think proper for the furtherance of justice. In the present case the court suffered the amendment, and in doing which committed no error. See Rev. Code, 467. 7th. After judgment rendered, the court may suffer any imperfections or defects in matters of form to be amended. Such was the case in this cause. See Rev. Code, 468, § 4. 8th. No judgment will be arrested on account of any variance in the pleadings, the names of parties, the description of instruments, &c., where the same is matter of form, or where the matter has been once correctly set out. See Rev. Code, 468, § 7.

NAPTON, J

The appellees sued the appellant in assumpsit on a bill of exchange. Plea non-assumpsit, and verdict and judgment for plaintiffs below. The appellant moved for a new trial, because the verdict was against law and evidence, and because the court erred in suffering the plaintiffs below to amend their declaration, and overruled the defendant's motion for a continuance, by virtue of said amendment. It was also alleged as a reason for a new trial, that the court suffered improper evidence to be given on the trial. The motion for a new trial was overruled. It appears from the bill of exceptions, that upon the trial, the plaintiffs, below, offered in evidence a bill of exchange, which is set forth in the record, and upon the back of which is indorsed the words, “accepted, St. Louis, June 22, 1840. Thomas S. Warne.” The plaintiffs proved the hand-writing of the payees, and who composed the firm of Anderson & Thompson And this was all the testimony. The defendant, below, then moved the court for a non-suit, upon the ground that the proof did not sustain the plaintiffs' declaration, in this: the declaration read, “George C. Anderson & John S. Thompson, plaintiffs, co-partners in trade, under the name, firm and style of Anderson & Thomas.” This was the only variance alleged on the trial, and the court overruled the motion, and allowed the counsel of appellees to amend the declaration by striking...