1. When a contract is alleged by the pleadings to have been made
on a certain day, it is no variance to offer in evidence a written
contract which took effect on a different day.
2. If it be proved that a bond bearing date the first day of the
month, did not become obligatory until the fifteenth, this is no
variance, although the bond is counted on in the pleadings as a
contract made on the first day of the month and bearing that
date.
This was an action of debt brought by the United States against
Le Baron, surety of Beers, deputy postmaster at Mobile, on an
official bond, dated
the first of July, 1850.
The declaration set out:
"For that whereas heretofore, to-wit,
on the first day of
July, A.D. 1850, at Mobile, to-wit, in the state aforesaid and
within
Page 71 U. S. 643
the jurisdiction of this Court, the said Le Baron, by his
certain writing obligatory sealed with his seal &c.,
acknowledged himself to be held and firmly bound to the
United States in the sum of $20,000."
The assignments of the breaches were laid in these words:
"That while the said Beers was deputy postmaster as aforesaid
under
said writing obligatory, and after the making and
delivery thereof, to-wit, on the 10th day of July aforesaid, and
divers other days before the commencement of the suit,"
&c.
The case had been already before this Court at December Term
1856, and is reported in 19 Howard.
*
The facts then thus appeared:
Beers was appointed deputy postmaster at Mobile by the President
during the recess of the Senate, and received a commission bearing
date in April, 1849, to continue in force until the end of the next
session of the Senate, that is to say until the 30th of September,
1850.
In April, 1850, before the old term had expired, he was
nominated by the President to the Senate for the same office, and
the nomination having been confirmed, a commission was made out and
signed by President Taylor, but the President dying, it had not
been transmitted to him at the date of the bond, July 1. The
condition of the bond was simply that whereas Beers was "deputy
postmaster at Mobile, . . . now if he should well and truly execute
the duties of the said office," the bond should be void. There was
nothing, therefore, in the bond to show to which term of office it
meant to apply -- whether to the earlier one which underlay the
second or to the second which overlapped partially the first. The
default assigned as a breach of the bond was admitted to have
occurred under the second appointment, and the principal question
on the writ of error then before this Court was whether the bond
secured the faithful performance of the duties of the office under
the first or under the second appointment.
Page 71 U. S. 644
The third plea of the defendant alleged that from the 1st July
until the 30th September, Beers was deputy postmaster under an
executive appointment made by the President during the recess of
Congress, and that the bond sued on was intended to apply to that
appointment and to that term alone, and that during that term no
default had occurred. The replication was "that on and after the
delivery by the defendant of the bond aforesaid, to-wit, on the 1st
day of July," and from thenceforward for four years, Beers held
under the appointment confirmed by the Senate, and that the bond
was made for the faithful discharge of duty under this appointment
-- the last one. The rejoinder was that "at the time of the
execution of the bond," Beers was not postmaster under the
appointment set forth in the replication, but under the Executive
appointment -- and that the bond secured the performance of duty
only during the time mentioned in the plea. Issue was joined on
this rejoinder of the defendant.
The court held that the bond being an official and statutory
bond, spoke not like ordinary bonds from its date, but from the
time when it reached the Postmaster General and was accepted by
him. The judgment was reversed and a
venire de novo
awarded.
On a subsequent trial it was proved that the bond was accepted
July 15. Thereupon circuit court instructed the jury that if the
bond given in evidence was not approved until July 15, 1850, there
was a variance between the allegation and the proof. And a verdict
having gone accordingly for the defendant, the instruction just
mentioned was the chief matter now assigned as error. A few
exceptions to the admission of evidence also appeared upon the
record.
Page 71 U. S. 647
MR. JUSTICE MILLER delivered the opinion of the Court.
It was decided when this case was in this Court before that the
bond which is the foundation of the suit was obligatory from the
time of its acceptance by the Postmaster General, and not from its
date, and also that the term of office of Beers commenced, under
his appointment by and with the advice and consent of the Senate,
on the day of that acceptance.
The case having been remitted to the circuit court for a new
trial, that court directed a verdict for the defendant on the
ground that there was a variance between the bond offered in
evidence and the one set out in the pleadings. The variance is
supposed to have reference to the time the bond took effect. It is
claimed that the bond is described as being dated and taking effect
on the 1st day of July, 1850, whereas the evidence showed that
while it bore that date on its face, it was not approved by the
Postmaster General until the fifteenth day of that month, and
therefore, under the decision in 19th Howard, did not become the
bond of defendant until the last-mentioned date.
Page 71 U. S. 648
Upon an examination of the declaration, it will be seen that the
plaintiff declares on the bond according to its legal effect --
namely that on July 1, 1850, the defendant by his certain writing
obligatory acknowledged himself indebted to the plaintiff in the
sum of $20,000. This manner of declaring gives no date to the bond,
and merely gives the time when defendant became bound by it to the
plaintiff. The rule that allegations of time, quantity, value
&c., need not be proved with precision, but that a very large
departure from the time, quantity &c., alleged, is allowable,
is so well understood and is so much a matter of everyday practice
that no citation of authority to sustain it is necessary. An
indictment charging a prisoner with murder on the first day of July
would be sustained by proving a murder committed on the fifteenth
of that month. How much more reasonable that a contract alleged to
have been made on the first may be supported by evidence of the
same contract made on the fifteenth of the month?
But it is also a rule of evidence that when words used in a
declaration are
descriptive of the instrument declared on,
it must, when offered in evidence, conform strictly to that
description, and we concede that if it is alleged as part of the
description of such an instrument that it bears such a date or is
dated of such a day, that no instrument will be admissible which
does not bear that date.
It is said by counsel that this declaration gives such a
description of the date of the bond. A careful examination of it,
however, shows no attempt at such description, and merely the usual
necessary allegation of the time when the contract was made. If,
however, counsel are correct in their construction of the
declaration, still there is no variance, because the bond read in
evidence actually bears the date which it is claimed that the
declaration ascribes to it, and it therefore conforms to the
supposed description.
It is no variance, however, from the substance of the issue to
show that though dated the first of July, it took effect only on
the fifteenth, because, as we have already shown,
Page 71 U. S. 649
the precise time when the contract became obligatory need not be
proved on trial.
The attempt to show that by the pleadings subsequent to the
declaration it became necessary to prove that the contract became
obligatory on the very day alleged is equally unsuccessful.
The defendant, by his third plea, alleges that from July 1 to
September 30, his principal was deputy postmaster under an
appointment not confirmed by the Senate, and that the bond sued on
was applicable to this appointment and to this period alone and
that during that time no default or breach of its condition
occurred. The replication is that on the day of the date of the
bond and from thenceforward for four years, Beers, the deputy
postmaster, held under the appointment confirmed by the Senate, and
that the bond covered his transactions during that time. To this
defendant rejoined that Beers was not postmaster under the
appointment set forth in the replication, but under the first -- a
Presidential appointment -- and that the bond covered only the time
mentioned in the plea.
As it was proved on the trial that the bond was accepted on the
15th July, 1850, it follows under the former decision of this Court
that from that time forth the bond covered his liability, and that
it was under the last appointment. The plea of the defendant fails,
therefore, except as to the time between the first and fifteenth of
July. It is not perceived how the precise day when the bond took
effect is material otherwise than this, and the court, by refusing
to permit any breach to be proved within those fifteen days, would
have fully protected the defendant.
All these pleas have relation to the legal effect of the bond,
and none of them
describes a bond different from the one
offered in evidence. After the day had been fixed by proof at which
the contract became binding, it was material that no breach should
be proved before that time; but the proof which fixed that date was
no variance from any pleading of the plaintiff, nor from the
substance of any issue made in the case.
Page 71 U. S. 650
As these principles require a reversal of the case, it is not
deemed necessary to notice the other exceptions which are
unimportant and may not arise on a new trial.
Judgment reversed.
* Page
60 U. S. 73.
