Brown v. Pickard

Powers, J.: In tbis case no objection is made or exception taken to tbe sufficiency of tbe evidence, but it is claimed tbat there is a variance between tbe allegations of tbe complaint and tbe proofs. Tbe action was originally brought by the plaintiff against H. S. Campbell, W. L. Pickard, and H. C. Shurtliff, as copartners, doing business under tbe firm name of H. S. Campbell & Co. Tbe defendant Campbell was not served with process, and during tbe progress of tbe trial tbe plaintiff was allowed to strike from tbe complaint tbe name of tbe defendant Shurtliff, and dismiss bis case as to him. Tbe suit was brought to recover judgment against tbe defendants upon two promissory notes. It was alleged tbat the defendant Pickard was a member of tbe firm of H, S-. Campbell & Co. To [293] maintain the issue, the plaintiff introduced tbe notes signed by an admitted member of the firm of H. S. Campbell & Co., and also the testimony of one Greenhow, the plaintiff, and the defendant Pickard himself, to prove that Picka rd was a member of the firm. The complaint was founded upon the promissory notes, and the proofs conformed to them in every particular. It was alleged in the complaint that the consideration was concurrent with the execution of the notes. The notes were dated October 2, 1882. The proofs showed that in the summer previous the goods were delivered for which the notes were given, that the notes were executed several months thereafter, but that the partnership continued during all that time. We think that it was immaterial when the consideration arose, and that there was no variance. Even a difference in the date of a negotiable instrument is not such a variance as will prevent a recovery or compel the amendment of a complaint. Much less is a difference in the time of the consideration for which a negotitiable instrument is given: 1 Estee’s Pl., 140, 142. We do not think that the defendant was prejudiced by striking out Shurtliff’s name. The question for the jury was whether Pickard was a member of the firm of H. S. Campbell & Co. Moreover, Pickard testified that Shurtliff was not a member of the firm. The court, in its charge to the jury, very clearly submitted the question at issue. The charge was as follows: “If the jury find that defendant Pickard entered into an arrangement by which he, or he and Shurtliff together, were to furnish the means necessary to conduct and start the business of securing and carrying mail contracts, the work to be done by H. S. Campbell; that in pursuance of that arrangement Campbell used the name of ‘H. S. Campbell & Co.,’ with the knowledge of Pickard, and bought of plaintiff horses, harness, wagons, etc., necessary to carry on such business, and gave a note signed H. S. Campbell & Co. therefor, then these facts would prove a copartnership between Campbell and Pickard, and plaintiff would be entitled to recover. [294] 2. If the jury find that H. S. Campbell and Pickard were copartners, and that Campbell executed those notes for a consideration furnished said copartnership, then plaintiff is entitled to recover on said notes.” It was not error to permit the reading in evidence of the first amended answer. Whether it had been superseded as a pleading by the second amended answer or not is not the question. It was an admission of the defendant of the facts, contained therein. As such it was admissible. We find no error in the record, and the judgment of the court below must be affirmed.