#### ROBERT KRIGHTLEY, vs J. C. SEYDELL, et. al.

SUPREME COURT,

AUSTIN, TERM, 1883.

*Variance*— JVon-Suit —If a suit was brought upon a note signed by two, and the evidence showed signature of one, tlie plaintiff should be non-áuited, changed by our decisions from the common law.

Yide exhaustive reasoning of the court, and authorities cited.

Appeal from Dallas County.

*J. J. Good,*for appellant.

*S. JRobertson,*for appellees.

STATEMENT.

This suit was brought (Deo. 29th, 1873) by appellant as administrator of Adelaid Krightley, deceased, against appellees, J. C. Seydell, N. R. Winniford, Wm. Fleming, S. C. Atterbory and Wm. H. Freedman upon a promisoiy note. The note is alleged to have been executed and delivered to plaintiffs intestate by the defendants and one Wm. Krightley (since deceased) and is set out in the petition as follows to wit :

$1000 00. Lancaster, Texas, Jan. 1st, 1871.

One year after date we, or either of ”us, promise to pay to Adelaid Keightley the sum of one thousand gold dollars, for value received, bearing interest at the rate of twelve per cent, per annum until paid.

(Signed) J. C. Seydell,

N. R. Winniford, Wm. Keithley,

Wm. Fleming,

S. C. Atterbury,

Wm. H. Freeman,

The plaintiffs alledged that the note was either lost or destroyed.

The defendants answered by general demurrer, general denial,and by pleas of *non est factum,*under oath.

June 26th, 1874 the plaintiff amended by alleging a mistake in the date of the note as described in the original petitiion and changing the date from January 1st, 1871, to January 1st, 1872. He also filed interrogatories to the défendents which will be found on page 11 of the record.

On the same day the defendants excepted to the amendment, be*301cause it set up a new cause of action, and because it described a different note from the one first set out.

On December 2nd, 1879 the case was submitted to the court without a jury, and judgement rendered for the defendants.

Motion for a new trial was overruled and plaintiff appealed.

The plaintiff proved by a witness who was a brother of the intestate, that he had frequently seen and read the note; that it was destroyed by.a fire which consumed the house of the intestate in 1873. He described the note as it is described in the amended petition as to amount, date, etc. Upon its face it purported to be signed by all the defendants and by Wm. Keithley, deceased.

Defendant Seydell had paid one hundred dollars on the note; had admitted to witness that he owed the note and desired to pa.y it, but had not the money.

The note had been given to plaintiff’s intestate for money loaned to Seydell. Wm. Keithley, deceased, and also the defendants, Winniford and Atterbury had admitted to witness that they had signed the note. But there was no proof that it had been signed by the defendants — Flemming and Freeman.

The assignments of error are :

1st, and 2nd. The judgement is contrary to and not supported by the law and the evidence.

3rd. The judgement should have been for the plaintiff.

4th. Error in overruling the motion for a new trial.

Opinion by

Delany W. S.

In considering this case we omit all that relates’to the interrogatories propounded by the plaintiff, except to say that they were not pertinent to the issue.

The defendents were not asked if they had executed the note in suit, but if they had signed any note.

Of course no judgement could have been rendered against them upon tiieir failure to answer. But the judgement actually rendered is assigned as error; and the question is, can that judgement be maintained ? Counsel for appellees puts the case thus : The plain-

tiff declares upon a note signed by six. He proved a note signed by two. Then is the fatal variance between the allegations and the proof. A non suit would have resulted at common law, and jndgment must have been rendered against the plaintiff, under our practice. We are not prepared to acquiesce in this summary disposition *302of the case. There is no doubt about the rule at common law. If suit was brought on a note signed by twc, and the note when produced was signed by only one, the plaintiff was non-suited; because he had declared on a particular note, and had produced an entirely different one. It was a question of identity. But the common law rule went still further. If a plaintiff sued several defendents upon a contract, and proved that it was made by them all, yet if in point of law, it was not obligatory upon some one of them, either upon the ground of infancy, or coverture at the time it was entered into, the plaintiff would be non-suited, and in this case he could not dismiss as to the infant, or *femme covert,*but must discontinue and bring a new suit, omitting the parties improperly joined. (1 Chitty Pleading 50. Austin and Glapp vs. Jordan 5 Tex. 134.) But that is not the law with us, as is shown by the case just cited.

In this State, as at common law, he who sues upon a written instrument must give such description of it as will inform the defendant of the nature of the claim against him. And the paper when produced must correspond with the one described, or the variance will be fatal.

Our statute upou this subject is as follows : “When any petition, answer, or other pleading,shall be founded in %vhole or in part on any instrument or note in writing, charged to have been executed by the other party or by his authority, and not alleged to be lost or destroyed, such instrument or note in writing shall be received in evidence, without the necessity of proving its executioh, unless the party by whom or by whose authority such instrument or note in writing is charged to have been executed, shall file his affidavit in writing denying the execution thereof.”

(Pasch. Art. 1443.)

This is a suit upon a note charged to have been executed by the defendents and one Wm. Keightley who has since died. Now let us suppose that the petition had not alleged the loss of the note, and that the defendants had pleaded a general denial. This would have required the production of the note.

Now suppose the note when produced had answered the description of the note proven in this case.

The plaintiff would have been entitled to a judgement. Because in that case there would have been no variance. The instrument described in the pleading and that produced in evidence would have *303been the same. But if there had been some latent defect in the instrument whicn was not apparent upon its face and must be shown by evidence *aliunde*this would be a matter of defense and must have been set up in the plea. As if one or more of the defendants had not in fact signed the paper, or were infants or married women.

This might have been set up by plea or *non est factum,*or infancy, or coverture.

The successful interposition of either of these pleas, by a part of the defendants would at common law have defeated the plaintiff’s whole case. For he must recover against all or none. (Austin vs. Jordan, 5 Tex. 130; Horton vs. Wheeler, 17 Tex. 52.) But that is not the law with us. The plea would avail the party pleading it, but not the others. (Shipman vs. Allen, 29 Tex. 19.)

Thus there is a very important difference between the law of this State and the common law so far as the rights and remedies of the plaintiff are concerned in cases like this. And the difference is important in its effects upon the rules of evidedce applicable to the case. At common law the plaintiff must allege and prove the liability of all the obligors. And why so V Because if he does not recover against all, he cannot recover against any. Complete proof against all the defendants was absolutely necessary to any recovery whatever. Bnt here the plaintiff may recovnr against a part, without a recovery against all, and the reason of the common law rule ceasing, the rule itself should cease. Suppose then as in the ease before us, the plaintiff declares upon a note which is alleged to have been lost. He then assumes the burden of proof. Proof of what? Must he prove that all the obligors actually signed the note and are liable upon it ?

Why should he be required to make proof against all the defendants unless he would recover against all? It is answered tha he has alleged that all the defendants executed the note, and that his proof must correspond with his allegations. But in the case supposed awhile ago, where the note was not alleged to have been lost, the plaintiff must have made tne same allegations as to all the defendants, viz: that they executed and delivered the note. Yet in that case, the plaintiff might recover against those who were not discharged by plea, though he failed as to those who were so discharged.

That is, the production of the note proves the liability of those *304who are not discharged by plea, but makes it no ¡woof against the others.

Is there any superior merit in that sort of merit in that sort of evidence which consists in the production of the note, of the note over other competent evidence to prove the same facts ?

We think not. In our opinion, when a plaintiff sues upon a lost note, he assumes in the first place, the burden of proving that the note with all the signatures upon it, just as he lias 'described it in his petition, once existed, and that it is lost. When he has done this, the question of variance is settled. He has proved the existance of the instrument as he has described it and its loss.

In the next place, as to the genuiness of the signatures, as to the binding force of the instrument upon all or a part of the defendants, that is another question. He is not required to prove that all the defendants are bound, as he was at common law, in order to recover against a part.

If he prove the execution by a part, he may recover against them, and judgment may be rendered in favor of those against whom no proof is made, or the suit might be dismissed as to them.

There can be no essential difference in principle between permitting the plaintiff to dismiss as to one defendant and take judgment against the other, and renderidg judgment in his favor as to one defendant and against him as to the others. This is illustrated by the cases of Willis vs. Morrison, 44 Tex. 27, and Congdon vs. Monroe, 51 Tex. 109. The first, of these cases, was upon an order or draft puporting on its face to be drawn by a firm composed of two. Yet upon the pica of *non est factum*interposed by one, it was held that judgment might be rendered in his favor and against the others.

The result would have been the same if the suit had been upon a prommissory note, and yet in the latter case the plaintiff would have alleged, as is done in all suits upon promissory notes against several makers, that the defendants “made, executed and delivered” the note. In that case Mr. Justice Roberts said that the judgment would be proper “unless we adopt the rigid system of the common law as to forms of action, which required the plaintiff to be non suited, if he sued two persons on a joint contract and one of them showed himself not to be liable on the contract. This would, it is believed, be contrary to the whole current of our practice and decisions from the earliest time of our judicial history.” Citing Austin vs. Jordan, 5 *305Tex. 130. The ease in the 51st Vol. was upon a joint contract, implied in the purchase ol’ goods, and the Supreme Court followed the case of Wiliis vs. Morrison. In fact, the moment, we admit that a plaintiff wuo has sued several defendants on a promissory note, may without amendment, dismiss as to one and take judgment against Ihe remainder, the common law doctrine of variance between the allegation and the proof (except in the matter oi" description) ceases to apply to the case.

The plaintig having acquired a new right under our system which he did iiot possess under the former, we simply readjust the rule of evidence, so as to give him his appropriate remedy.

Our opinion is that the judgment should be reversed and the cause remanded.

Jane 26th, 1883.

The report of the Commissioners of Appeals, examined, their opinion adopted and the judgment reversed and the cause remanded.

WILLIE, C. J.

1 doubt the correctness of the decision in this cause.

STAY TON, JOHN. W. Associate Justice.