Farley v. Harvey

14 Ind. 377

• Court: Indiana Supreme Court
• Decided: June 7, 1860
• Status: Published

Opinion

Per Curiam.

Suit by Harvey against the appellant upon a promissory note. Trial; finding and judgment for the plaintiff.

The counsel for the appellant, in his brief, says that “the appellant, in bringing this case to the Supreme Court, desires to test the question of variance; to determine whether the widest departure, and the most unlimited variance between the complaint, pleadings, and proof, is of any avail under our present statute and practice.”

Such being his object, he has been a little unfortunate in selecting a case in which no variance whatever is shown to exist; hence, those questions cannot be tested in this case.

Here, the plaintiff, John C. Harvey, alleges that the defendant, by his note, &c., promised to pay the plaintiff a certain sum of money. A copy of the note is set out, and constitutes a part of the complaint, and from this it appears that the note was payable to J. C. Harvey. The averments in the complaint, together with the copy of the note constituting a part of it, are equivalent to a direct allegation that the note ivas made to the plaintiff by the name of J. C. Harvey. Hunt v. Raymond, 11 Ind. R. 215.

The variance between the name of the plaintiff in full, and the initials as they appear in the note, is the matter complained of.

The production of the note payable to J. C. Harvey, was sufficient, without any other proof, to sustain the action, it not being denied under oath that it was payable to the plaintiff. Abernathy v. Reeves, 7 Ind. R. 306.—Hauser v. Hays, 11 id. 368.

The judgment is affirmed with 10 per cent, damages and costs.