Lee v. Mendel

40 Ill. 359

• Court: Illinois Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

When a defendant who is sued as the maker of a written contract, does not file a plea denying its execution under oath, and on the trial the contract described in the declaration is offered in evidence, with the Christian name of the defendant, signed only by its initial letter, it is admissible even without an averment in the declaration that the defendant signed by the initial of his Christian name. In such a case there is no variance between the instrument offered in evidence and the declaration unless the declaration contains descriptive averments. Speer v. Craig, 22 Ill. 433; Pickney v. Pulsifer, 4 Gilm. 79; Greathouse v. Kipp, 3 Scam. 371. This rule does not conflict with the case of Rives v. Marrs, 25 Ill. 316, where the averment was of a descriptive character, nor with the case of Hurd v. Curtis, 18 Ill. 188, where there was a variance in the surname. But when the initial letter of the Christian name is used, as is so common among all classes, the latter is not to be regarded as a variance, that is, as another name, or the name of another person, but simply as an abbreviation of the full name of the defendant, and the court may presume it to be such abbreviation, because the defendant by his pleading has admitted the execution of the contract. If the instrument offered in evidence bears a really different name, as that of John instead of William, of course no such presumption can be indulged.

It is also objected in this case, that a copy of the instrument sued on was not filed with the declaration. The defendants were sued as the guarantors of a note, and the declaration averred that they guarantied it by writing their names on the back thereof before its delivery and acceptance. Appended to the declaration was a copy of the note with the names of the defendants as indorsers. This was a sufficient copy of the instrument sued on. The blank over their names could be filled up at the trial. Their legal liability arose from the mere placing of their names on the back of the note before its delivery.

Judgment affirmed.