Fox River Valley Railroad v. Shoyer
Wisconsin Supreme Court
ERROR TO MILWAUKEE COUNTV COURT. This was an action brought by the plaintiff against the defendant, to recover the amount of his subscription to the capital stock of said company.
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ERROR TO MILWAUKEE COUNTV COURT. This was an action brought by the plaintiff against the defendant, to recover the amount of his subscription to the capital stock of said company. On the trial, plaintiff offered to read in evidence the stock subscription mentioned in the complaint, where the defendant’s name appeared as a subscriber to ten shares of the capital stock of said company, preceded by a printed heading or agreement in the words and figures following : “ We, the undersigned, do hereby subscribe to the capital stock of the Fox River Valley Railroad Company, the number of shares of…
1Opinion of the Court
By the Court,
Whiton, C. J.
Presuming that the judge before whom the cause was tried was right in deciding that there was a material variance between the complaint and the testimony offered by the plaintiff, we are of opinion that the court should have allowed the plaintiff’s motion to amend the complaint in such a manner as to render the testimony *371admissible. The code (§ 77) provides that “no variance between the allegation in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party, to his prejudice in maintaining his action or defence upon its…
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