Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 249
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1875.] SHIPMAN v. FULCROD. 249
Opinion of the Court.
The court overruled the objection of defendant to the
admission of the note as evidence, stating, as the reason for his
First. That the absence of a revenue stamp did not destroy
the evidence of the indebtedness as shown by the note, in the
courts in this State. And in this ruling we think there was no
error. (Gregg & Co. v. Fitzhugh, 36 Texas, 128; May v. Rutledge
et cL., 37 Texas, 134.)
Second. That the middle letter in Walker's name was not
It is a well-settled rule of pleading that the facts constituting
the cause of action must be set forth with substantial accuracy.
In Gammage v. Alexander, 14 Texas, 418, it is said to be a rule
of pleading, as old as the science itself, that a contract, when
sued upon, must be correctly stated, and if the evidence differ
from the statement, the variance is fatal to the action. (Roseborough
v. Gorman, 6 Texas, 314; Me-eins v. Mitchell, 1 Texas,
443; Hall & Jones v. Jackson, 3 Texas, 305.)
It is equally well settled that allegations which are descriptive
of the identity of the writing set forth, such as names,
sums, magnitude, dates, durations, terms, and the like, must, in
general, be precisely proved. (1 Greenleaf's Evidence, 58;
1 Starkie's Evidence, 332, 373, 374.)
The first step, says Greenleaf, in his work orl Evidence, on,
the side of the plaintiff, is the production of the document
itself; and the bill or note produced miust conform, in all respects,
to the instrument described in the declaration; for
every part of a written contract is material to its identity, and
a variance will be fatal. (2 Greenleaf's Evidence, 11, 155, 160;
1 Id., 58.)
The objection to the note produced on the trial, on the
ground of the variance between it and the note set out in the
petition, we think should have been sustained; and, for error in
admitting the note and judgment thereon for plaintiff, the
judgment is reversed and the cause remanded.
Reversed and remanded.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/257/: accessed May 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .