King v. Clark

7 Mo. 269

• Court: Supreme Court of Missouri
• Decided: September 15, 1841
• Status: Published

Opinion

Opinion of the Court by

Napton-, Judge.

This was an action upon a bill of exchange drawn by G, W. Cook, upon the plaintiff in error, and accepted by the said plaintiff. The declaration describes the bill as being drawn by George A. Cook, under the name of G. A. Cook. The defendant pleaded non-assumpsit, and a special plea alleging a gaming consideration, upon which issues were taken. On the trial the plaintiff offered in evidence a bill of exchange drawn by G. W. Cook, in favor of Cook & Clark, and accepted by plaintiff in error. Thereupon the plaintiff in error moved for a non-suit, on the grounds of variance. The motion was overruled, exceptions duly taken, and the point brought up to this court.

In Craig v. Brown, (Peters C. C. R. 139,) it was alleged hi the declaration that the bill of exchange sued on, was drawn by Elisha Brown, and the court held that a bill signed ^ ° by Elijah Brown could not be given in evidence.

So in Whitewell v. Bennett, (3 B. & P. 550,) it was held that a bill signed by one Crouch, could not go in evidence under a count describing the bill as signed by Couch.

jn Franklin and others v. Talmadge, (5 J. R. 84,) the ° ' • , , plaintiff declared in trespass quare clausum fregit, by the William Robinson, and the deed under which he claimed title to the locus in quo, was to William T. Robinson, it was held that the variance was immaterial, the letter T being no part of the plaintiff’s name.

In the declaration now under consideration, the pleader chooses to aver, that George A. Cook drew the bill of exchange sued on under the name of G. A. Cook. It was, perhaps, unnecessary to set out the middle name, or initial letter of the middle name at all, but having done so @s a 'description of. the instrument, the plaintiff must be bound by such descriptive averment.

The court erred in not ordering a nonsuit.

Judgment reversed and cause remanded.