Crawford sued Yankee on a note made to Eleanor Crawford payable twelve months after date, for two hundred dollars, with interest at the rate of ten per cent, per annum. The note was dated on the 6th day of March, 1840, and was alleged to have been assigned to the plaintiff below (defendant in error here) on the 22nd of February, 1848 ; the assignment being made by affixing the mark of the assignor. The defendant pleaded the general issue, and the cause, by consent of parties, was tried by the court without a jury and judgment rendered in favor of the plaintiff for the sum of $163 20 debt, and $25 80 damages.
Upon the trial, the plaintiff read the deposition of the said Eleanor, in which she states that she assigned a note, of the description and date in ques-
tion, to the plaintiff, on the 22nd day of February, 1848, and that that was the only note she assigned him on that day. The reading of this deposition was objected to by the defendant, the objection overruled, the opinion of the court excepted to, and the point properly presented in a motion for a new trial. The plaintiff next proved by a witness that he was present about the 24th of February, 1848, when the note, thus assigned, was presented to the defendant for payment; that he made a payment upon it of about $60 (which was credited), and that he promised to pay the balance. Upon this testimony, the plaintiff was permitted to read the note in evidence, to which the defendant objected and excepted.
The defendant then produced and offered as an off-set an account which had not been previously filed in the cause, and of which no other notice had been given to the plaintiff, to the reception of which, or of any testimony to support it, the plaintiff objected, was sustained by the court, and the defendant excepted.
Upon the last point, as it nowhere appears in the record of what the account consisted, when it was contracted, or even against whom it was, we deem that the defendant has not placed his complaint, in that respect, in a position to have it here intelligently investigated. It is therefore passed over, without the necessity of even considering the point relied upon by the counsel for the appellee on the score of notice.(a)
Respecting the admissibility of Mrs. Crawford’s deposition to prove the previous assignment of the note in question (her mark being equivalent when thus identified to her written signature), we have been unable to perceive any valid objection ; and when to this there is superadded the additional testimony of the witness who saw the defendant pay a portion of the debt to the plaintiff (as assignee) and promise to pay the balance, any further objection on the. score.of the assignment would seem scarcely to reach the dignity even of a technicality. The judgment of the Circuit Court is therefore affirmed.(b)
(а) See 2 Wag. Stat. p. 1019, §38; Butcher v. Death, 15 Mo. R. 271; Steele v. Ackley, 15 Mo. R. 289; Robards v. Munson, 20 Mo. R. 65.
(b) See 2 Wag. Stat. p. 1020, § 38; Darrah v. Steamboat “Lightfoot,” 15 Mo. R. 187.