Cotes v. Campbell
California Supreme Court
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 M’Kinley, payable to Davis, and endorsed to plaintiff. Campbell denied the execution of the note on oath.
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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 M’Kinley, 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 M’Kinley 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…
1Opinion of the CourtHeydenfeldt, Justice
Wells, Justice, concurred.
The plaintiff declared upon a note made by one M’Kinley and one Campbell. To sustain the declaration, he offered in evidence a note signed H. B. M’Kinley and C. Campbell & Co.
No principle is better settled than that the allegations and *192proofs must correspond. In this ease 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.
2Cited by4 opinions
- Harrison v. McCormickCalifornia Supreme Court · 1886
- McCord v. SealeCalifornia Supreme Court · 1880
- Weinreich v. JohnstonCalifornia Supreme Court · 1889
- Hartman v. BeldenWashington Supreme Court · 1905