Thornton, Conrow & Co. v. Herring — 10 Del. 154

Majority

p. 154

SUPERIOR COURT.

FALL SESSIONS.

1876.

Thornton, Conrow & Co. v. William H. Herring.

Headnote

The words “payable at the Farmers’ Bank” in the body of a negotiable promissory note is a material part of it, and if 'omitted in the declaration upon it it will constitute a fatal variance.

In such a case where the bar of the statute of limitations would defeat another action upon the note, after the jury had been sworn and it had been offered in evidence and ruled out, the court granted leave to amend the narr, directed a juror to be withdrawn and the case to be continued.

Assumpsit on a promissory note for one hundred and eighty-six dollars and four cents at sixty days, dated June 17th, 1870, and payable to the order of the plaintiffs at the Farmers’ Bank at Dover, Delaware, which was offered in evidence.

Ridgely (Smithers with him), for the defendant,

objected to its admissibility in evidence because the note declared on and described in the declaration was alleged in it to be payable generally and not at the Farmers’ Bank, as the note now offered in evidence appeared on its face to be. . There was therefore a misdescription of it in the narr, and it constituted a material and fatal variance between them. 2 Ch. on Pl. 118.

Fulton, for the plaintiffs :

The variance was not material, for the defendant had notice that the note now offered in evidence was the identical note sued and declared on in this action,

p. 155

because a complete and correct copy of it was filed with the declarations on it in the office of the prothonotary pursuant to the provision of the statute. It was not necessary either to allege or prove that it had been presented at the Farmers’ Bank for payment at maturity, and it has been so held in this court.

held the variance to be material and ruled out the evidence offered.

Fulton then asked leave of the court to amend the declaration with a proper description of the note in that particular, and urged the application with much earnestness, as the statute of limitations would bar another action upon it, which, after argument and a suggestion from the counsel on the other side to that effect, the court granted leave to amend on condition that a juror should be withdrawn and the case continued, the costs of this term to abide the ultimate determination of the case.