Hunt v. Wright

Wheeler, J. It is very clear that the Court erred in overruling the objection, on the ground of variance, to the contract admitted in evidence as proof of the plaintiff’s cause of action. The contract sued on, as described in the petition, was made on the 15th of December, 1837, for the payment by the defendant of the sum specified, “ when thereunto afterwards requested.” That admitted in evidence was a contract of that date, for the payment of the sum specified, “ in two years from this date.” The plaintiff’s cause of action evidently was upon the written contract, yet it was not so described in the petition. In the account annexed reference is made to an “ obligation herewith exhibitedbut it was not exhibited, or filed, previous to the trial. If it had been made a part of the petition, the defendant might have taken advantage of the variance, or repugnancy by exception ; but as it was not, he was not afforded the opportunity of taking the objection until it was offered in evidence. He then objected to its introduction on account of the variance; and the objection was well taken, and ought to have been sustained. Upon the question whether the evidence was sufficient to establish the fact of the death of the defendant’s intestate, and [550] notice of the fact to the plaintiff at any certain period of time, sufficiently remote to bring the case within the operation of the statute of limitations, it is not necessary to express an opinion, as the evidence may not be the same on a second trial. The judgment is reversed and the cause remanded. Reversed and remanded.