Doron v. Crosby

12 Ind. 634

• Court: Indiana Supreme Court
• Decided: June 29, 1859
• Status: Published

Opinion

Per Owriam.

This was an action by the appellee against the appellant upon a promissory note in this form:

“ $2,100. On or before the > 25th of December, 1857, I promise to pay E. L. Crosby 2,100 dollars, waiving valuation or appraisement laws—September 6, 1855; being the third payment on the east half of the south-east quarter of section 34, in township 12, north of range 6 east; also, the north-east quarter of section 4, in township 11, north of range 6 east; also, the west half of the south-west quarter of section 34, in township 12, north of range 6 east. John JJoronP

M. M. Ray and T. A. McFarland, for the appellant.

This note was filed with the complaint. Defendant below answered by a general traverse. The case was submitted to the Court for trial. Finding for the plaintiff. New trial refused and judgment.

A bill of exceptions shows that the plaintiff offered in evidence the note sued on, which offer was resisted on the ground of variance; but the Court admitted the evidence.

The variance pointed out in the appellant’s brief is this: The suit-is brought on a note payable to Elza L. Crosby, and so, in the complaint, alleged to be payable; but the note given in evidence is payable to “ E. L. Crosby.” The note was correctly admitted in evidence. Hauser v. Hays, 11 Ind. R. 368, is precisely in point, and fully sustains the ruling of the Circuit Court.

The judgment is affirmed with 4 per cent, damages and costs.