
    Rull Bass and E. L. Lesley, Plaintiffs in Error, v. Luffer & Prather Garage, a Corporation, Defendant in Error.
    
    Opinion Filed January 14, 1921.
    Where there are important variances between the note attached to a declaration and that introduced in evidence over appropriate objection; and where trial wás had without a plea or judgment by default against one of the defendants, a judgment against the defendants will be reversed.
    A Writ of Error to the Circuit Court for-.Osceola County; C. O. Andrews, Judge. .
    Reversed.
    
      
      Johnston & Garrett, for Plaintiffs in Error;
    
      W. B. Crawford, for Defendant in Error.
   Perkins, Circuit Judge.

The following is the declaration herein:

“For that, whereas, the defendants on the 22nd day of June, A. D. 1918, by their promissory note, now overdue, promised to pay to A. F. Bass the sum of One Thousand ($1,000.00) Dollars, with interest after date at the rate of eight per cent, per annum, one year after date, but did not pay the same, and the said A. F. Bass endorsed said note for a valuable consideration and before maturity t'o plaintiff herein.
“And being so indebted the defendant in consideration thereof then and there promised to pay the plaintiff on request the said several sums of money, yet the said defendants, though requested, have not paid the same or any part thereof to the plaintiff, but refuse so to do, and therefore plaintiff brings suit and claims damages in the sum of Two Thousand Dollars.”

E. L. Lesley moved the court “to require the plaintiff t'o amend his declaration in the following respect, before the defendant is required to plead thereto, to-wit:

“That the note sued on, as is shown on the face of the copy attached thereto, is the obligation of this defendant and that the defendant Rull Bass is guarantor thereon, and should be sued on as such, so that if judgment should be obtained, the defendant Rull Bass would be only secondarily liable upon said judgment.” This motion does not appear to have been acted on. A demurrer of Rull Bass to the declaration was overruled.

Eull Bass filed the following plea:

“That he did not make the note declared upon; that he did make a note payable to the order of A. F. Bass in the amount of $1,000.00, dated June 22nd, A. D. 1918, but that said note so made was different in tenor from the note declared upon in said action.”

Verdict was directed for the plaintiff and judgment thereon was rendered against both defendant's. Motions in arrest of judgment and for new trial were denied. Writ of error was taken.

There are some important variances between the note attached to the declaration and.that introduced in evidence over objection on the ground of variance.

Trial was had with no plea by E. L. Lesley and no judgment by default against him.

Reversed.

Per Curiam.

The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be, and the same is hereby, reversed.

Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.  