delivered the opinion of the Court:
This was an action of assumpsit for a quantity of corn sold and delivered, and verdict and judgment for the plaintiff. The pleas were, the general issue, payment and tender of part. A motion for a new trial and in arrest of judgment was overruled, an appeal taken and the following errors assigned: First In allowing Wyatt’s testimony to go to the jury. Second. In not requiring plaintiff Latham to surrender at the trial certain checks given in part payment of the corn. Third. In refusing the instructions asked by defendant. Fourth. In giving the instructions asked by plaintiff. And fifth. In refusing a new trial.
It was objected to Wyatt’s testimony that he was an interested witness. Although he was at one time the owner of the corn, and sold it to Latham, and for the value of which" Latham was to give him a credit on his indebtedness to him, he was not thereby interested in the event of the suit. It made no difference to him how the verdict might go, Latham was bound to give him the credit. In fact, Latham' had given him credit for it as Wyatt states. We cannot perceive in what respect he was interested so as to exclude his evidence. The price of the corn was established by the testimony of Ryan.
Upon the second point it is very evident the arrangement made by the defendant through the banking house of Dustin & Music, by which to pay. .the plaintiff for the corn, was an arrangement in which the defendant was the active participant, the plaintiff being entirely passive, only desirous of procuring such funds from the defendant, by any arrangement he might make, as would pay 'his own debts. This very check or draft for three hundred and ■ thirty-eight fyu dollars, was taken by the defendant himself to Lacy, to pay a debt plaintiff owed Lacy’s client, and was accepted only on the condition that it could be applied-in that way. It could not be so "applied, and ■was delivered up on the • trial to be canceled. The whole arrangement about the drafts was made by "the defendant and for his accommodation, and proved fruitless for the purposes intended. It is very certain plaintiff has not been paid for the corn, nor, in our judgment, does he appear to have done any act or entered into any arrangement which, in law, can or ought to preclude him from recovering the price agreed. The . defendant was at liberty to settle his bank account with Dustin & Music as he pleased, without prejudicing the plaintiff’s rights.
As to. the first instruction asked by defendant, and refused, we think it was correctly disposed of by the court, because it does not follow that the amount of the checks should be charged against the plaintiff if they were charged against the defendant at the banking house, as it is not apparent in any part of the testimony that the plaintiff has ever had the benefit of them or any credit for them, or that they ever came to his use. The draft for $338.88 was brought to Lacy by Hodgen himself, he well knowing the understanding and arrangement about them. And so of the second refused instruction, there is no evidence that plaintiff took the checks at all for any purpose. The arrangement about them was made and consummated with defendant and the bankers, and solely for his accommodation, the plaintiff to have the benefit of them, if they could be made available, and not to be held responsible otherwise. We cannot perceive the relation the third instruction bears to the case, so as to affect the plaintiff. If defendant has these deposits with these, banking houses, he can appropriate them.
The instructions given by the court on behalf of the plaintiff were such as the case required, and we approve them. The whole evidence in the case fully supports the verdict, and a new trial was properly refused. The judgment must tbe affirmed. . -
Judgment affirmed. ' •