Opinion ly
William Conly for the use of Barton T. David, commenced bis suit against tbe defendant John C. Fletcher before a justice of the peace. The instrument of writing on which the action is founded, is an order drawn by A. IT. Judd in favor of William Conly clerk of the steamer Amaranth, for the sum of forty-two dollars, on John C. Fletcher the defendant. The order bears date, May the 9th, 1842* at St. Louis, and was given to pay that amount as money due to the boat from the Marine company. The order was presented to Fletcher, and “Accepted June 13th, 1842, J. C. Fletcher.” A credit is endorsed on the order for nine dollars, of the same date with the acceptance. The parties appeared before the justice on the day appointed for the hearing, with counsel, the cause was tried and judgment rendered by the justice against the defendant for the sum of forty-three dollars and fifty-six cents debt and interest, with costs of suit.
The trial was had before the justice on the 16th of October, 1847; on the 1st of November, 1847, the defendant with K. S. Adams, who was offered as his security for the purpose* took Ms appeal to the district court. The bond on file with the record of the ease, however, which was executed on taking the appeal, shows that, instead of R. S. Adams becoming security for the defendant, Charles W. Hunt executed it with him as his bail. The cause was tried on the appeal at the April term, 1848, at Burlington,
As to the plaintiff’s right to recover, several questions were raised by defendant’s counsel in the court below, and adjudicated. In deciding these, it is contended by defendant’s counsel, that there is error in the proceedings of that court. The cause is here on writ of error, and the reversal of the judgment is urged on the following assignments:
1. The court erred in admitting in evidence to the jury, the original order and acceptance referred to in the bill of exceptions in manner and form as stated therein.
2. In ruling out from the jury the evidence of defendant proving the name of the person referred to in said order.
3. In rendering final judgment against said Hunt.
Tlie bill of exceptions shows that the defendant’s counsel objected to the reading of the order in evidence to the jury, on the ground that before this was done it was necessary the plaintiff should'give some evidence, by which to show his identity with the drawee of the order. This objection was overruled by the court, and the order was .permitted to go in evidence to the jury.
¥e cannot discover anything erroneous in this ruling of the court. It has been heretofore decided by this court, that the holder or promissee of a promissory note may bring his suit against the promisor and recover judgment in the name which is given to him by the maker of the instrument, when he executes it. And this is in accordance with the sound principles of justice. By allowing him to resist a recovery for this, he would be deriving an advantage from his own wrong.
The acceptance of the order by Fletcher the defendant, rendered him liable to the plaintiff Conly, for the amount called for by it. It was tantamount to a promise to pay it to-him as payee, and no further evidence for the purpose of identifying Conly as the payee, was necessary. The order, properly accepted, was there for the jury in the case, ’
After tbe order and acceptance bad been read in evidence to the jury, tbe plaintiff rested bis case. Tbe defendant, then offered a sworn witness to prove that tbe person referred to in said order, is named Conolly and not Conly. Tbis evidence was ruled out by tbe court, and tbis ruling is complained of as error, on tbe ground of variance.
Tbe order being before tbe jury and tbe identity of tbe plaintiff established for all legal purposes, so as to protect tbe interests of the parties to the action, we are of tbe opinion that tbe evidence could have no legitimate bearing on tbe case, as it then was, on tbe ¡Dart of plaintiff, submitted to tbe jury on the instrument itself, without objection being previously made. To avail himself of this objection, on the ground of variance, tbe defendant should have moved it to tbe court when tbe instrument was offered in evidence, before it bad been read to tbe jury, and before tbe plaintiff bad closed bis part of tbe testimony. A practice different from that here enjoined, would tend to confusion and privation of right. By permitting tbe order to go in evidence to tbe jury as be did, tbe defendant waived and lost tbe benefit of tbis objection. He could not thus, when be bad recognized tbe legal position of tbe jffaintiff in tbe action, introduce bis testimony to resist a recovery against him on a point so technical.
In deciding tbis point, we remark also that on examination of tbe name, as written in tbe instrument, it is extremely difficult to say whether it is to be read “ Conolly” or “ Conly,” which of them it may be, is immaterial, as we are of tbe opinion as to their pronunciation, that tbe principle of idem sonms may with propriety be applied.
Tbe last assignment of error is fully answered by the record. Tbe judgment of tbe court below is in perfect accordance with tbe requirement of tbe statute, which authorized judgment to be entered upon an affirmance,
Judgment affirmed.