Majority
p. 191WILLIAM COTES, Respondent, v. CHARLES CAMPBELL, Appellant.
Headnote
Where the plaintiff declared upon a note made by one M'ICinley and one Campbell, and gave in evidence a note signed by H. C. M'ICinley and C. Campbell & Co., held, that the variance was important and substantial, and that the District Court erred in admitting it in evidence.Appeal from the Third Judicial District.
• The respondent in this case sued the appellant in the District Court, upon a promissory note alleged to have been signed by him and one M’Kinley, payable to Davis, and endorsed to plaintiff. Campbell denied the execution of the note on oath. On the trial, the plaintiff offered a note in evidence purporting to be signed by M’Kinley and C. Campbell & Co.; defendant objected, on the ground that it was not the note described in the complaint. The court admitted the note, and defendant excepted.
The foregoing facts embrace the only point considered in the Supreme Court.
The case came up on appeal by the defendant.
Crittenden, for appellant.
Tingley, Ramsey, and Roland, for respondent.
delivered the opinion of the court. Wells, Justice, concurred.
The plaintiff declared upon a note made by one M’Kinley and one Campbell. To sustain the declaration, he offered in evidence a note signed H. B. M’Kinley and C. Campbell & Co.
No principle is better settled than that the allegations and
p. 192
proofs must correspond. In this ease the variance was in important and substantial particulars, and is, therefore, fatal.
The note should have been excluded on the objection of the defendant.
The judgment is reversed, and the cause remanded.