Bennett v. McCanse

Sherwood, C. J.

Action on promissory note brought August 12,1872, note dated August 1,1860, and due in one day. The petition stated that a payment of $152.55 on the note had been made by defendant, October 3rd, 1860, and that on August 1st, 1870, he had made another payment thereon of $18.10. The answer of defendant denied the payment by him of the latter sum, and pleaded the statute of limitations in bar of the action. At the trial the evidence showed that the payment denied was in fact made by Whaley, a co-maker of the note. Thereupon the court permitted the petition to be amended in accordance with the facts proven, and judgment went for plaintiff.

There was no error in granting permission for the amendment. Such amendments are fully authorized by the statute (sections 1, 2, 3, 2nd W. S., pp. 1033-4), as well as sanctioned by repeated decisions of this court, (Turner v. C. &. M. City R. R. Co., 51 Mo. 501 ; Fisher v. Max, 49 Mo. 404 ; Harkness v. Julian, 53 Mo. 238 ; Wells v. Sharp, 57 Mo. 56 .) Nor did the amendment change the issues between the parties. The only substantial issue between the parties was, as to whether the statutory bar had attached or not; nor was there any change in the cause of action; that consisted alone in the debt evidenced by the note in suit.

If the defendant regarded himself as misled by the supposed variance between the pleading and the proof, he should have pursued the statutory method, by filing his affidavit to that effect, and then the court, if satisfied, would not have granted permission to amend, except upon terms. But we do not regard the variance as material, and the court might, therefore, under section 2, supra, have disregarded the variance as immaterial, and directed the facts to be found according to the evidence. The payment by Whaley, the co-maker, of the $18.10, before the statutory bar had attached, took the case out of the statute, not only as to himself, but also as to the defendant, (Craig v. Gallaway County Court, 12 Mo. 94 ; Lawrence County v. *196 Dunkle, 35 Mo. 395 ,) and the plea of the statute put in issue not only payment by the defendant, but payment by any person authorized to make it. (2 W. S. 921, sec. 30.). Eor these reasons we shall confirm the judgment.

All concur.

Affirmed.