Cotes v. Campbell

Decided July 15, 1853

California Supreme Court · decided 1853-07-15

• 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.

Cited by 4 later decisions — most recently May 1905

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1853-07-15

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Heydenfeldt, Justice,

¶1delivered the opinion of the court. Wells, Justice, concurred.

¶2The 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.

¶3No 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.

¶4The note should have been excluded on the objection of the defendant.

¶5The judgment is reversed, and the cause remanded.