Longley v. Caruthers

Citations

• 64 Tex. 287

Syllabus

<p>1. Evidence — Variance.—Suit was brought on a contract, which on its face purported to have been executed “ this 24th, 1880.” The written contract was attached to the petition, and to it appeared the name of one subscribing witness. The petition alleged that the contract was reduced to writing on the 24th day of January, 1880. Held:</p> <p>(1) There being no plea of non est factum, and the date of the execution of the instrument having been alleged, it was unnecessary to offer parol evidence of its date.</p> <p>(2) In the face of such allegation, there could be no variance between the allegation and the proof.</p> <p>(8) The variance claimed could not be material, and evidence of the true date of the contract could not have operated as a surprise.</p> <p>(4) The contract, being one the parties could enter into, was good without date.</p> <p>(o) An instrument which is sued upon, if made a part of a petition, and filed with it for the inspection of the defendant, controls and cures any misdescription of it in the body of the petition.</p>