delivered the opinion of the court.
Francis M. Fisk brought his action of assumpsit against Charles Collins, in the circuit court of St. Louis county ; and judgment in that court being entered up against him, he brings the cause into this court by writ of error to reverse it.
The action is brought on a bill of exchange, dated the seventh day of November, 1888, drawn by the defendant Collins, on one Joseph Tabor, *139requesting him to pay, six months after the date thereof, to the order Of Munn & Lindsley, one thousand dollars for value received. This bill was the same day accepted by Tabor, and after acceptance, indorsed by the payees, Munn & Lindsley, to Fisk, the plaintiff in this action.
The defendant pleaded the general issue, and a set-off. The cause was submitted to the circuit court without the intervention of a jury. The circuit court gave judgment for the defendant, on the issues made on each of 1he pleas above mentioned. The defendant in the circuit court, appellee here, gave in evidence on the trial of the cause, the following instrument of writing, having first proved its execution by the appellant, plaintiff in the circuit court, to-wit: “I have this day sold, and transferred to Charles Collins, for value received, a draft which was drawn by Miron Leslie on said Collins for one thousand dollars, and by him not accepted ; the same was given on account of a debt, due, or supposed to be due, from A. W. Parsons to Fisk and Hollingshead, and given to meet a draft, given by Fisk and Hollingshead to F. M. Fisk; and whereas said Collins has paid me the amount of the said draft, I agree to obtain said draft, and hand the same, over to the said Collins, so as to enable him to collect the same, provided the said Parsons is responsible in any way.
(Signed,) F. M. Fisk.”
The plaintiff objected to the admission of this instrument of writing in evidence. The court overruled the objection, and the plaintiff excepted to the decision of the court on this point. The defendant, appellee, then called one George Anderson as a witness, who testified that the draft referred to in said last named instrument of writing, as given by said Miron Leslie on the said defendant for $1000, and by him not accepted, was at the date of the instrument before recited, (December 6th, 1836,) and still is the property of the witness ;.that the same was in possession of the plaintiff, but obtained from witness’ attorney in Illinois, on witness’ order, and for his use; that the witness had a conversation with the defendant on Main street, in St. Louis, during which the plaintiff came up, and remarked, in answer to a question put to him by the witness, that he had obligated himself to obtain said first mentioned draft, and hand it over to the defendant; that during the said conversation, Fisk, the appellant, spoke of the defendant having made some ar-radgement for the satisfaction of the said draft of Leslie, by giving some paper, and witness understood something to be said about a note, or bill of Joseph Tabor.
*140This testimony was also objected to by the plaintiff, appellant, his objection was overruled, and he excepted.
The appellaut, plaintiff in this action, then, as rebutting evidence, offered and gave the testimony of one St. John, who testified that the bill of exchange herein before first named, was given by the defendant to the plaintiff in satisfaction, and for the purpose of taking up certain notes, amounting together to a larger sum than that specified in the said bill executed by the defendant to the plaintiff, and then due and unpaid, which had been placed by the plaintiff in witnesses’ possession for collection; that the transaction in which the first mentioned bill of exchange was given, was an entirely different one from that referred to in the instrument of writing executed by the plaintiff, and given in evidence by the defendant, appellee; that the witness does not recollect all the particulars referred to in the last mentioned transaction, and cannot say what was the amount of the said Tabor’s acceptance. The court found on this evidence for the defendant, and gave judgment accordingly.
The appellant moved to set aside the verdict, and to grant a new trial, for the following reasons: 1st, Because the finding of the jury is against the weight of evidence. 2d, Because the finding of the court is without evidence. 3d, Because the finding of the court is without evidence, and against law and evidence. 4th, Because the court admitted improper and illegal evidence at the trial.
The court overruled the motion, and the plaintiff excepted to the decision of the court.
The two points necessary to be decided here, are:
1st, Did the court commit error in admitting the evidence offered by the defendant?
2d, Did it err in overruling the motion for a new trial?
By the instrument of writing executed by Fisk, and given in evidence by Collins, to whom it was made, it appears that Fisk had sold a draft drawn on Collins by one Leslie, and which Collins had not accepted; this draft was for $1000, and he by this agreement had obligated himself to procure this draft, and deliver it to Collins, the defendant in error, and drawer of the bill sued on, declaring that Collins had paid him the amount of such draft.
Anderson, witness of the defendant Collins, testified that the Leslie draft belonged to him, at the time Fisk gave his obligation to hand it over to Collins, and still belonged to Anderson, and that he had heard Fisk speak of Collins having made an arrangement with him for the said draft of Leslie, by giving some paper, and he understood some*141thing to be said about a note, or bill of Joseph Tabor. This evidence certainly was admissible, under the plea of non assumpsit, to prove that the draft sued on, which had been accepted by Tabor, was obtained fraudulently, or without consideration. For it tends to establish the belief, that Fisk was privy to the drawing of the bill by Collins, and the acceptance of Tabor; for, says the witness, Fisk spoke of Collins having made some arrangement for the satisfaction of Leslie’s draft, by giving some paper which the witness understood to be a note, or bill of Tabor. A jury might very well, on this evidence, believe that the bill sued on, was the bill drawn by Collins in favor of Munn & Lindsley, accepted by Tabor, and by Munn & Lindsley assigned to Fisk. Fisk gave rebutting evidence; and to which the most credit ought to be attached, it-is not the province of this court to decide. Suffice it to say, that it is the opinion of this court, that the evidence offered by the defendant Collins was admissible.^
The judgment of the circuit court must be affirmed.