Opinion
Appeal from the Third Judicial District.
The respondent in this case sued the appellant in the District Court upon a promissory note alleged to have been signed by him and one McKinley, payable to Davis, and endorsed to plaintiff. Campbell denied the execution of the note on oath. On the trial, the plaintiff offered a note in evidence purporting to be signed by McKinley and C. Campbell & Co. Defendant objected, on the ground that it was not the note described in the complaint. The Court admitted the note, and defendant excepted.
The foregoing facts embrace the only point considered in the Supreme Court.
The case came up on appeal by the defendant.
COUNSEL
Crittenden, for Appellant.
Tingley, Ramsey, and Roland, for Respondent.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
The plaintiff declared upon a note made by one McKinley and one Campbell. To sustain the declaration, he offered in evidence a note signed H. B. McKinley and C. Campbell & Co.
No principle is better settled than that the allegations and proofs must correspond. In this case the variance was in important and substantial particulars, and is therefore fatal.
The note should have been excluded on the objection of the defendant.
The judgment is reversed, and the cause remanded.