Longley v. Caruthers
Texas Supreme Court
Appeal from Burnet. Tried below before the Hon. J. C. Mathews, Special Judge. Suit was brought by Caruthers on a written contract with the defendant for the delivery of cattle. The contract was dated “ this 24th, 1880,” and was attached to the petition and filed with it.
Read the full summary
Appeal from Burnet. Tried below before the Hon. J. C. Mathews, Special Judge. Suit was brought by Caruthers on a written contract with the defendant for the delivery of cattle. The contract was dated “ this 24th, 1880,” and was attached to the petition and filed with it. Exceptions were taken to evidence, furnished by another than the subscribing witness, to show the date of its execution, and also to its introduction in evidence on the ground of an alleged variance between the contract offered and the allegations in the petition.
1Opinion of the Court
Willie, Chief Justice.
The instrument sued on having been attached to the petition as an exhibit, there could be no variance between the allegation and the proof when it was offered in evidence. “ This is upon the ground that the instrument thus made a part of the petition, and filed with it for the inspection of the defendant, must control and cure any misdescription of it in the body of the petition.” Pyron v. Grinder, 25 Tex. Sup., 159; Spencer v. McCarty, 46 Tex., 213.
Besides, the variance claimed was not material, and the admission of the contract could not have operated a surprise on the…
2Cases cited2 opinions
- A. May & Co. v. PollardTexas Supreme Court · 1866
- Spencer v. McCartyTexas Supreme Court · 1876
3Cited by14 opinions
- Lee v. McCormick, Texas Court of Appeals, 9th District (Beaumont)1983
- McVeigh v. International Travelers Assur. Co.Court of Appeals of Texas · 1936
- Puckett v. Big Lake State BankCourt of Appeals of Texas · 1934
- EASTMAN OIL WELL SURVEY COMPANY v. HamilCourt of Appeals of Texas · 1967
- Dougherty v. RobbCourt of Appeals of Texas · 1928
9 more not listed; retrieve them via the Exa API.