
    Sapirie v. Wells.
    [No. 10,341.
    Filed April 22, 1920.]
    Bills and Notes. — Actions.—Variance as to Maker. — Effect.— Where the description of the maker of a note, as given m the complaint, materially differs from the instrument as placed in evidence, the variance is fatal unless there is averment in the complaint, sustained by proof, explaining the apparent inconsistency, and this is especially true' where the plaintiff was fully apprised of the' variance upon the trial, by the court, but took no steps to amend or introduce explanatory evidence.
    From Marion Superior Court (97,701) ; John J. Rockford, Judge.
    Action by Moses Sapirie against Henry Wells. From a judgment for defendant, the plaintiff appeals.
    
      Affirmed.
    
    
      Joseph K. Brown, for appellant.
    
      Emsley W. Johnson and Joseph W. Hutchinson, for appellee.
   Nichols, C. J.

Suit upon a promissory note and to foreclose a mortgage securing the same. The note for $60 was dated July 16, 1918, due six months after date, and signed “Henry Wells.” There was an answer in denial, of payment, and of usury. Trial by the court, and judgment for appellee. A motion for new trial was overruled, and this ruling is the only error assigned.

The record is unsatisfactory, and the evidence confusing. It will be observed that the note sued on, and which was made an exhibit to the complaint, was signed “Henry Wells.” Appellant has not favored us with a copy of the note offered in evidence. However, the evidence tends to show that it was signed on the top line, “N. Wells,” and on the next line below, “Henry Wells.” The evidence is conflicting, and this court will not weigh it. No authorities are needed on this holding. Where the description of the maker of a note sued on as set out in the complaint differs materially from the instrument itself, the variance is fatal unless there is an averment in the complaint explaining the apparent inconsistency and sustained by proof. 8 C. J. 971. Appellee states that appellant was fully apprised by the court •that he did not regard the note introduced in evidence as being the same as the note, a copy of which had been filed with the complaint. Appellant does not deny this statement. No steps were taken to amend, and no steps were taken to introduce evidence to explain the variation. As there is evidence to support the finding, it will not be disturbed. Judgment affirmed.  