Vandever v. Clare , 16 Ark. 331 ( 1855 )

Mr. Justice WalKee

delivered the opinion of the Court.

This was an action of debt upon a writing obligatory, executed by the defendants to "William H. Norton, and by him, on the 1st day of April, 1854, endorsed to' Joseph W. Yandever, (the plaintiff.)

The defendant pleaded payment and release, upon which issue was taken; and upon the trial of the case, which was by consent submitted to the court in place of a jury, the defendants offered in evidence the following, which purports to be a copy of the writing obligatory sued upon, 'with the endorsements thereon; the latter of which was executed under the seal of said Norton, on the 19th day of January, 1854.

“$400.

One year after the date hereof, we, or either of us, promise to pay to William H. Norton or bearer, the sum of four hundred dollars, with interest on the same, at the rate of eight per cent. per amount from date, for value received. Given under our bands and seals, this 18tb day of July, A. D. 1851, at the city of Fort Smith.

S. F. GLARE, [seal.]

G. E. BUMFORD, [seal.]

G. G. SHUMARD, [seal.]

J. R. KENNEDY, [seal.]

S. D. MoDONALD.” [seal.]

Upon wbicb is endorsed :

“NOVEMBER 17th, 1852.

Received of S. F. Clark, two hundred dollars of the principal of the within note, and twenty dollars and fifty cents as interest. ’ ’ And also : “ Received of G. E. Bumford, and Geo.G. Shumard, by the hands of Aaron Clark, the sum of two hundred dollars, the balance of principal due, on the annexed and foregoing bond made to me or bearer, on the 18th day of July, 1851, by S. F. Clark, G. E. Bumford, George G. Shumard, J. R. Kennedy, and S. D. McDonald, for the sum of four hundred dollars, with interest on the same at the rate of eight per cent, per annum from date, and upon which suit has been instituted upon said bond against the said G. E. Bumford and George G. Shumard, to the August term, 1853, of the Circuit hurt of the county of Sebastian, and is still pending in said court. Now therefore, I, William H. Norton, do release, for and in consideration of the sum of two hundred dollars, so paid by the said Aaron Clark as aforesaid, the said G. E. Bumford, and George G. Shumard, from the said sum of two hundred dollars, and do order and direct the clerk of the Circuit Court of Sebastian county to dismiss said suit, and enter this release as a satisfaction upon the record of said court, upon the said Bumford and Shumard, paying all costs of suit herein. Given under my hand and seal, this 19th day of January, 1854.

WM. D. NORTON.” [seal.]

Endorsed — filed in my office, January 19th,.1854.

JOHN CARNALL, Chris.

Tbe foregoing instrument was offered in evidence by tbe defendants, to sustain tbe issue upon tbe plea of release, but tbe plaintiff, after admitting tbe due execution thereof, objected in general terms to tbe introduction of said instrument as evidence, but tbe court overruled tbe objection, and permitted it to be read in evidence; and thereupon, found tbe issue for tbe defendants, and rendered judgment accordingly.

The plaintiff moved tbe court for a new trial, which was overruled, and be excepted, and now relies upon bis objection to tbe introduction of tbe paper purporting to be a release as evidence. Indeed, this is tbe only question presented or argued by the counsel.

Tbe plaintiff pointed out no specific objection to tbe evidence at tbe time it was offered, but giving him tbe fullest benefit of bis objection, and allowing him to show any available grounds of exception, as fully as if pointed out and relied upon at tbe time when the objection was made, we will proceed to determine whether there is such material variance between tbe bond declared upon and that released, as contended for. Tbat tbe release, if a good defence for defendants, Bumford and Shumard, is also, under tbe issue formed, good for all of tbe defendants, is a question definitely settled by tbe repeated decisions of this court. Frazier vs. State Bank, 4 Ark. Rep. 510, Ferguson vs. State Bank, 6 Fng. 513. Indeed, tbe counsel for tbe plaintiff have not insisted upon a different rule, but they rely upon several discrepancies between the deed of release in the description of debt released, and tbat declared upon, which they contend, amounts to substantial and fatal variance.

Tbe only ground for variance, tbat has^the semblance of substance, is tbe second, in which it is insisted, that tbe instrument described in tbe deed of release, differs from tbe bond declared upon, in this; tbat in tbe deed of release,.it is described as a bond for four hundred dollars, with eight per cent, per amomvt, whilst tbat sued upon is for eight per cent, per annum. These words, when written in baste, and when tbe letters are imperfectly formed, much resemble each other, except perhaps the last letter in amount/ and when taken in connection with the balance of the sentence, no one can doubt what was intended to be written. The sense of the sentence requires such understanding, but we are not left to inference upon this point, because, in the afterpart of the deed of release, the rate of interest is referred to, and repeated, in connection with a full description and reference to the bond, from the payment of which the defendants were released, and it is there described as a debt for four hundred dollars, with eight per cent, per annum, fully corresponding with the bond sued upon, and it is very evident that this being in the same instrument, and part of it enters into, and forms a part of, the description of the bond. This is the only matter of substance pointed out. and insisted upon.

As to the figures and calculations of interest, found upon the back of the bond, they were merely private memorandums, and formed no part of the bond or material endorsement upon it. Concede, as argued, that it was unnecessary to copy the endorse-. ment on the deed of release, and notwithstanding that if copied, it must be done correctly, or the variance will be fatal; still, it does not follow that because those attempted to be copied must be correctly copied, that if one is so copied, every other letter or figure on the bond must also be copied; and that is the ground of objection in this instance. That the instrument was or not in suit, formed no part of the instrument itself.

These are the grounds relied upon to exclude the release from the court as evidence, and we are satisfied none of them are well, taken, and scarcely one of them worthy of serious consideration. Let the judgment of the Circuit Court be affirmed.