COOKE
v.
GRAHAM'S ADMINISTRATOR
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In this contract action on a bond, the plaintiff declared upon a bond dated October 3d, but the bond produced in evidence bore a date of January 3d of the preceding year, creating a fatal variance between the declaration and the instrument itself. The Supreme Court reversed the lower court's judgment and entered judgment for the plaintiff in error on the demurrer, holding that when a plaintiff files a special demurrer to his opponent's pleading, the court must examine all prior pleadings and will notice defects that would be fatal on a general demurrer, including the variance in the bond's date.
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Marshall, Ch. J.,
delivered the opinion of r*2g5 the court to the following effect:—
The plaintiff declares upon a bond, dated the 3d of October ; and upon oyer, the bond appears to bear date the 3d of January preceding. By the oyer, •the bond is made a part of the declaration. There were several pleadings, and among the rest, a bad declaration, a bad rejoinder, and a special •demurrer by the plaintiff to this bad rejoinder. When the whole pleadings are thus spread upon the record by a demurrer, it is the duty of the court to examine the whole, and go to the first error. When the special demurrer •is by the plaintiff, his own pleadings are to be scrutinized, and the court will notice what would have been bad upon a general demurrer.1 The variance between the date of the bond declared upon, and that produced on oyer, is fatal.
Upon the second point, the court is of opinion, that there is no error in the construction given by the court below to the condition of the bond. There are many cases on the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties. But for the first error, the judgment must be reversed, and judgment entered for the plaintiff in error on the demurrer. Judgment reversed, with costs.
On a demurrer, judgment will be rendered against him who commits the first fault in the pleadings; yet the fault in the prior pleadings must be one that is fatal on general demurrer, and not cured by a verdict. Jackson v. Rundlett, 1 W. & M. 381; Aurora City v. West, 7 Wall. 94; Railroad Co. v. Harris, 12 Id. 66. And see United States v. Gurney, 4 Cr. 341; United States v. Arthur, 5 Id. 257; United States v. Linn, 1 How. 104; Townsend v. Jemison, 7 Id. 706.
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Moses v. United States, 166 U.S. 571 (U.S. 1897)
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Aurora City v. West, 7 Wall. 82 (U.S. 1868)
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United States Fid. & Guar. Co. v. Whittaker, 8 F.2d 455 (9th Cir. 1925)…court’s order entered therein; and to that end both parties introduced oral and other evidence appropriate to their methods of trial without any objection or claim of variance.” Said Chief Justice Marshall in Cooke v. Graham’s Adm’r, 3 Cranch, 235, 2 L. Ed. 420: “There are many cases on the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties.” And in 23 C. J. 531, it is said: “A person may be liable on a bond not signed by him o…
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- The United States v. William Linn and others, 1 How. 104 (U.S. 1843)