Opinion
No. 4073.
October 4, 1962 Rehearing Denied October 25, 1962.
Appeal from the 19th District Court, McLennan County, Bill Logue, J.
O. M. Street, Dallas, for appellant.
David G. Copeland, Waco, for appellee.
Plaintiff's petition alleged that on August 26, 1961 he "loaned to defendant $5,000, whereupon defendant executed a promissory note of the tenor following:'. The note in the principal sum of $5000, reciting it was "for value received," was then copied in the body of the pleading. It was a negotiable instrument, dated August 26, 1961. Defendant's pleading admitted execution of the note, but alleged it was without consideration; that it was an accommodation instrument, and plaintiff verbally agreed defendant would not be required to pay it. No proof was tendered as to these matters.
The note was introduced in evidence and non-payment was proved. Defendant elicited from plaintiff that he did not loan defendant $5000 on the date of the note, but that it was executed in renewal of a prior note evidencing a loan made in 1952. Defendant says the court erred in overruling his motion for instructed verdict on the ground plaintiff "failed to make out a prima facie case," since he admitted he had not loaned defendant $5000 in 1961. The court instructed a verdict for plaintiff.
Variance between pleading and proof "as to matters of time connected with the consideration," such as that consideration and execution were concurrent, is not material. 11 C.J.S. Bills and Notes § 650b(1)(j) b(2), p. 38; and see 9 Tex.Jur.2d Sec. 250, p. 272. Affirmed.