Start v. Moran

Garrett, J. The plaintiff in error objects to the judgment below, on the ground that neither of the considerations set forth in the declaration was proven as alleged. Whether that point is sound on the merits may be doubted, but the recoid is in such condition that the question can not be raised in this court. The objection to the admission in evidence of the note and indorsement was that they were incompetent and irrelevant; that they were variant from the cause of action described in the declaration, and that no consideration had been shown for the supjiosed guaranty. There can be no pretense that the evidence was incompetent, nor does the plaintiff in error now make any such contention. The objection on the ground of variance was general, and failed to point out in what the variance consisted. That has been held insufficient. St. Clair County Ben. Soc. v. Fietsam, Adm’r, 97 Ill. 474. If the variance had been specified the declaration could have been amended or further proof introduced to supply any deficiency. In this respect the case is parallel to Watson’s Executors v. McLaren, 19 Wend. 557, where the court, in reply to a similar objection, said: “The objection was general that the guaranty and note varied from each count. The objection stopped there. To be made available by exception the particular discordances should have been pointed out, as they are now, for they were open to be obviated.” The proof did show a consideration. The law presumes a consideration from the note and guaranty. This is admitted by plaintiff in error, but he insists that the consideration thus presumed is not the consideration alleged in the declaration. The objection alleged on the trial was,' that the proof did not show any consideration, which was not true. It would he unfair to allow this point any weight when the attention of the plaintiff below was not directed to it in time to meet it. The judgment of the court below will be affirmed. Judgment affirmed.