Carpenter v. Sheldon

Per Curiam.

Suit on a note by tbe assignees against tbe maker for 150 dollars. A copy of tbe note and indorsement accompanied tbe complaint. Tbe sum demanded in tbe conclusion of tbe' complaint was 154 dollars and 25 cents; tbe sum recovered .was 162 dollars, tbe amount of tbe note and interest, and was enough to cover tbe amount due if judgment bad been recovered«at tbe first term; several terms of Court having intervened between tbe institution of tbe suit and tbe recovery of the judgment. In tbe complaint it is averred that Caleb Hendee, tbe payee of tbe note, assigned it to tbe plaintiff, but tbe indorsement filed with the note showed that it was signed by C. Hendee.

Tbe introduction of tbe note, &c., as evidence, was objected to on the ground of this variance. Tbe objection was not well taken. Tbe averment that Caleb Hendee indorsed it is not contradicted by tbe indorsement shown of C. Hendee, nor is there any variance, for it is equivalent to averring that Caleb, by tbe name of C. Hendee, indorsed.

As to tbe amount of damages recovered, it is obvious that tbe complaint in respect to tbe amount demanded might have been amended in tbe Court below; sec. 580, 2 G. & H. 278; to correspond with tbe proof, but it was not done, and we are of opinion that we should here consider the amendment as made, in view of the facts of this case, namely, that it was a suit on a note; that tbe complaint originally claimed damages sufficient, but that by the accumulation of interest alone tbe amount recovered exceeded tbe amount so claimed.

The judgment is affirmed, with 3 per cent, damages and costs.