Longley v. Caruthers

64 Tex. 287

Opinion

Willie, Chief Justice.

The instrument sued on having been attached to the petition as an exhibit, there could be no variance between the allegation and the proof when it was offered in evidence. “ This is upon the ground that the instrument thus made a part of the petition, and filed with it for the inspection of the defendant, must control and cure any misdescription of it in the body of the petition.” Pyron v. Grinder, 25 Tex. Sup., 159; Spencer v. McCarty, 46 Tex., 213.

Besides, the variance claimed was not material, and the admission of the contract could not have operated a surprise on the defendants. May v. Pollard, 28 Tex., 677.

As there was no plea of non est factum filed by the defendants, the contract was admissible in evidence without proof of its execution. There was no necessity for the introduction of proof to show the date when it was executed, that fact having been charged to have occurred on a certain day, and this not having been denied under oath by the defendants. Besides, no date was essential to the instrument, as it was good without one, or with the defective date which it seemed to bear. Bish. on Con. § 19.

Proof on this point was therefore superfluous, and its admission operated no injury to the defendant, and it is therefore unnecessary to consider whether or not it was admissible. See May v. Pollard, supra.

There is no error in the judgment and it is affirmed

Affirmed.

[Opinion delivered May 26, 1885.]