Wiggin v. Lewis

66 Mass. 486

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1853
• Status: Published

Opinion

By the Court.

The case, we think, is within the provisions of St. 1851, c. 255, and the directions were right. That statute provides that in any action founded on contract, express or implied, in which more persons than one are defendants, the plaintiff shall be entitled to judgment against those, who shall, upon trial, be found liable in the contract declared on. No amendment of the declaration is required. The legal effect of the statute is, that such discrepancy between the contract declared on, and that proved, shall be deemed no variance. W. G. Lewis, we think, was liable as acceptor. The bill was drawn on himself and another jointly. He accepted in his own name and that of a partner, whom he had no power to bind by such acceptance, but that circumstance did not avoid his own act. He had power to bind, and did bind himself. Exceptions overruled.