Schmidt v. Schmaelter

Currier, Judge, delivered the opinion of the court. The plaintiff sued Caspar Schmaelter, Adam Diefenbach, and John Kellner as the makers of a negotiable promissory note, which was alleged to be lost. The proof was that the firm of Michael Diefenbach & Co. and John Kellner made the note, and that Caspar Schmaelter and Adam Diefenbach were members of the firm. The defendants insist that the proof was totally variant from the allegations, amounting to a total failure of proof. Granting that the note was defectively described, the defect did not amount to a misdescription. The description was good as far as it went. The proof shows that the parties who were alleged to be the makers of the note were so in-fact. In this respect there was a literal correspondence between the allegation and proofs. It is far from being a case where the allegations. are unproved in their ‘ ‘ entire scope and meaning,” in the sense of the statute. (Gen. Stat. 1865, p. 683, §1'.) Nor is it a case where one contract is alleged and another is proved ; nor [504] does the fact that the note was lost make any difference. That has nothing to do with the identity of the contract. The amendments made after judgment, in accordance with the statute (2 Wagn. Stat. 1034, §§ 5, 6), furnish a perfect protection to the defendants against a second suit upon the same note, and remove all ground of cavil on that point. Therejs no force in the objection founded upon the fact that Kellner signed the note by writing his name upon the hack instead of upon the face of it. It is of no consequence on what part of the note his signature was placed, so that he signed it as an original maker. Nor does it make any difference that, as between himself and Diefenbach & Co., he was a surety. He was not the payee of the note ; nor was he, in any legal sense, an indorser. (Perry v. Barrett, 18 Mo. 140; Buchner v. Liebig, 38 Mo. 188.) The law on this subject has been long and well settled. Let the judgment be affirmed. The other judges concur.