Becker v. German Mutual Fire Insurance

Citations

• 68 Ill. 412

Syllabus

<p>1. Variance—in name of defendant. In an action upon an instrument in writing- where the alleged name of a party thereto is apparently different from the one appearing to the instrument when offered in evidence, the instrument is not admissible in evidence unless there be an averment in the declaration explaining the apparent inconsistency between the names, and the averment be sustained by proof.</p> <p>3. In a suit against William, Becker, the declaration alleged that the defendant made, etc., the note sued on, without any explanation as to the name used, or in which it was executed, and the note offered in evidence was signed Wilhelm Becker, in the German language: Held,, that the two names were different in both orthography and sound, and that the noté was not admissible in evidence, for the variance.</p> <p>3. Same—how anoided. It is immaterial, as to the obligation of the promise, by what name a defendant executes the writing. He may be sued upon it by his true name, and- the variance may be prima faeie avoided by an averment in the declaration that he executed the writing by such a name, or otherwise reconciling the apparent inconsistency.</p>