Lilly v. . Baker
Supreme Court of North Carolina
Civil Actiok tried at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J. The plaintiff brought this action against W. B. Surles, A. J. Kivett and M. A.-Baker, and alleges: 1. That on the 19th of May, 1877, the defendant, Surles, by his promissory note promised to pay said Kivett on the first of January, 1878, the sum of five hundred and four dollars, with interest at eight per cent, from date. 2. That Kivett endorsed the same to defendant, M. A. Baker, who…
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Civil Actiok tried at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J. The plaintiff brought this action against W. B. Surles, A. J. Kivett and M. A.-Baker, and alleges: 1. That on the 19th of May, 1877, the defendant, Surles, by his promissory note promised to pay said Kivett on the first of January, 1878, the sum of five hundred and four dollars, with interest at eight per cent, from date. 2. That Kivett endorsed the same to defendant, M. A. Baker, who endorsed it to the plaintiff. The defendant denies each of the allegations of the complaint. The plaintiff put in evidence…
1Opinion of the CourtAshe, J.
The exception taken by the defendant that there was a material variance between the complaint and the evidence, cannot be sustained in any view of the case. It is not sustainable upon the ground that the complaint sets forth that the instrument sued upon was a promissory note, and that put in evidence was a bond, for such a variance is not material in this case.
Section 128 of the Code provides that “ no variance between the allegations in the pleading and the proof shall be deemed material, unless it shall actually have misled the adverse party to his prejudice in maintaining his action upon…
2Cases cited3 opinions
- Shelton v. . DavisSupreme Court of North Carolina · 1873
- Givens v. Merchants' National BankIllinois Supreme Court · 1877
- Hoffman v. . MooreSupreme Court of North Carolina · 1880
3Cited by8 opinions
- Tyson v. Joyner.Supreme Court of North Carolina · 1905
- Watkins v. Kaolin Manufacturing Co.Supreme Court of North Carolina · 1902
- Fourth National Bank v. WilsonSupreme Court of North Carolina · 1915
- Johnson v. . LassiterSupreme Court of North Carolina · 1911
- Corporation Commission v. . WilkinsonSupreme Court of North Carolina · 1931
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