Trude v. Meyer

Citations

• 82 Ill. 535

Syllabus

<p>1. Pleading and evidence—plaintiff shmildnot recover upon a claim not made by the pleadings, nor insisted on at the trial. Where the plaintiff declared specially upon a promissory note, and gave no notice, either by bill of particulars or otherwise, of any other note or claim, and the defendant claimed that he had paid the note sued on, partly in money and partly by giving another note for a less amount, and, on the trial, introduced the note for the less amount in evidence, (against plaintiff’s objection,) in corroboration of his testimony that he had paid the note sued on, as claimed, and the plaintiff made no claim for the amount of the small note, on the trial, but the whole case turned upon the question of whether the note sued on had been paid, it was held, that a verdict for the defendant should not be set aside on the ground that the plaintiff was, in any event, entitled to recover the amount of the smaller note.</p> <p>2. Evidence—as affecting the question of payment. Where a defendant sought to prove payment of the debt sued for by an administrator, to the intestate in his lifetime, it was held proper to refuse testimony in behalf of the plaintiff as to how much money the intestate had two weeks before his death, as such proof would have no tendency to show the defendant had not paid him mone}.</p>