Farmer v. Cram
Before: Heydenfeldt
Synopsis
Where the complaint in an action on a bill of exchange describes it as payable to the order of A, whereas the bill offered in evidence is drawn payable to B, it is a variance to be taken advantage of by objecting to the evidence, or by a motion of nonsuit.
After the motion for a nonsuit, the Court may, upon terms, allow an amendment of the complaint, if it would not operate as a surprise upon the defendant, but if this is not done, the plaintiff cannot recover.
Heydenfeldt, J., delivered the opinion of the Court—Murray, C. J., concurring.
The declaration describes the bill sued on as payable to the order of Adams & Co., whereas the bill introduced in evidence is payable to the order of Lydia B. Farmer.
It was proper to take advantage of this variance between the pleadings and proof, by objecting-to the evidence when offered, or moving for a nonsuit.
The great necessity for a correct description of commercial paper, when sued on, is to enable one recovery to operate a bar to any subsequent action for the same cause.
After the motion for nonsuit, the Court might, upon terms, have allowed an amendment of the declaration, if it would not have operated a surprise upon the defendants, but as this was not done, the judgment must be reversed, and the cause remanded.
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