Farmer v. Cram

7 Cal. 135

Opinion

Heydenfeldt, J.,

delivered the opinion of the Court—Murray, C. J., concurring.

The declaration describes the bill sued on as payable to the order of Adams & Co., whereas the bill introduced in evidence is payable to the order of Lydia B. Farmer.

It was proper to take advantage of this variance between the pleadings and proof, by objecting-to the evidence when offered, or moving for a nonsuit.

The great necessity for a correct description of commercial paper, when sued on, is to enable one recovery to operate a bar to any subsequent action for the same cause.

After the motion for nonsuit, the Court might, upon terms, have allowed an amendment of the declaration, if it would not have operated a surprise upon the defendants, but as this was not done, the judgment must be reversed, and the cause remanded.