Pickering v. Pulsifer

¶1The Opinion of the Court was delivered by

¶2The declaration in this case was in assumpsit upon a promissory note, executed by appellant, payable to James Packingham, and by him assigned to appellees. The count upon the note contains no averment that appellant, by the name of “L. Pickering,” made the note. The damages claimed are $191-69. Plea, non assumpsit. The cause was submitted to the Court for trial. The Court found the issue for the appellees, and assessed their damages at $202-86.

¶3From the bill of exceptions, it appears that the appellees on the trial in the Circuit Court, offered in evidence the following note:

“$185-69. For value received, I promise to pay James Packingham or order, the sum of one hundred and eighty five dollars and sixty nine cents, on demand with interest.

L. Pickering.”

indorsed, “James Packingham.”

¶4Appellant objected to the introduction of the note. The Court overruled the objection, and the appellant excepted.

¶5After the damages had been assessed by the Court, the appellant moved for a new trial, because the finding of the Court was against law and evidence, which motion was overruled, and appellant excepted.

¶6The errors relied on are, the admission of the note in evidence; the overruling the motion for a new trial; and the rendition of judgment upon the finding of the Court against the appellant.

¶7One point made on the argument is, that there is a variance between the note declared on and the one offered in evidence by the plaintiff. The Court is of opinion that there is no substantial variance. We may admit that strictly" and technically the defendant “Loring Pickering,” and “L. Pickering,” may not necessarily be the same person. Yet, on the other hand, they may be the same; and if it shall in any manner appear, either by proof or by implication of law, that “Loring Pickering” did make the note, then it cannot be denied that the allegation and the evidence correspond. “Loring Pickering” is sued. He appears and pleads non assumpsit. The note is produced, signed “L. Pickering,” and he does not, under our statute, verify his plea by affidavit; and consequently, as we think, does not “deny on the trial” the execution of the note by himself.

¶8Upon this precise point, we have been able to find but little authority.

¶9In Chitty on Bills, 560, it is said that “when a promissory note was signed for Bowes, Hodgsons, Key & Co.,” and they were sued, and one of them was declared against by the name of Thomas Key, whose real name was John Key, it was held to be no misnomer, it being proved that the real partner had been sued and served with process, and cites 16 East, 110.

¶10On p. 626-7, of Chitty on Bills, it is held, that it will not be necessary to prove that the defendants were of the Christian names stated in the declaration.

¶11In a case entitled Hodenpyl v. Vingerhoed, and another, tried before Abbott, C. J., 3 July, 1818, the action was on a note drawn to the plaintiff and subscribed by the firm of “ Vingerhoed & Christian.” The declaration stated several Christian names of each defendant. A witness swore that he knew the firm of “Vingerhoed & Christian,” and that there were two persons of those surnames in the firm; but that he did not know their Christian names; and that, in a conversation with Vingerhoed, he admitted that the note was subscribed by him in the name of the firm. This was held sufficient to establish the action against both defendants. Chitty on Bills, 626, note.

¶12In an action on a promissory note against the maker, the declaration alleged that the note was made by “John C.,” and the note offered in evidence was signed “J. C..” Held that this was not a variance. Cantley v. Hopkins, 5 Stew. & Port. 58, cited in 3 U. S. Dig. 148, No. 274. The case of Vance v. Funk, 2 Scam. 261, affirms the same doctrine.

¶13These authorities appear to be in point, and none have been found or referred to, which, when this precise question has been raised, are in conflict with them.

¶14Although the decision of this question was not absolutely necessary to the determination of this case, yet, as it and similar ones must frequently arise in practice upon the Circuit, it was considered important that it should be settled.

¶15The judgment in this case however must be reversed, for the reason that the finding and judgment of the Court exceeds the damages claimed in the declaration. This is matter of substance, it being apparent from the record that the Court could not legally render such a judgment. Although this Court have not held that they.have not the power to allow a remittitur to be entered here, yet it has heretofore declined to adopt the practice. Chenot v. Lefevre, 3 Gilm. 643.

¶16The proper judgment cannot be entered here, unless the Court indirectly do that which it has refused to do directly; that is, unless it should enter up a judgment for the amount claimed in the declaration, which would virtually amount to a remittitur by the appellees. From the evidence presented in the record the proper judgment, so far as the amount is concerned, was entered by the Circuit Court. But this was unwarranted by the declaration. Before the proper judgment can be entered, the appellees must apply to the Circuit Court for leave to amend their declaration; or if the cause is tried there without such amendment, and the damages assessed shall exceed the ad damnum in the declaration, they must remit the excess in that Court.

¶17The judgment of the Circuit Court is re.versed at the costs of appellees, and the cause remanded to that Court for further proceedings.*

¶18Judgment reversed.