29 Mo. 456 | Mo. | 1860
delivered the opinion of the court.
This was an action on a promissory note executed by the defendants, who are the appellants, to the plaintiff “ as guardian” of the estate and person of one Martin, a person of unsound mind, for four hundred dollars. The answer admits the execution of the note, but pleads as set-off a promissory note of E. Martin to one of the defendants, and certain other debts'.transferred to said defendant by third persons alleged to be due from said Martin. The answer also avers that the suit is prosecuted for the use and benefit of Martin, and that the note was given for property of said ward, which had been sold by the guardian. ’The answer was stricken out, and judgment was rendered for the plaintiff for want of answer. A motion to set aside the judgment having been overruled, the defendants bring the cause to this court by appeal. • The question for our consideration is, was the proposed set-off admissible ?
It has been heretofore decided by this court that the words “ guardian,” &c., in a note were mere descriptio persones, and that the note or instrument was evidence of a debt due the person named as payee therein, and might be sued on by the legal representative of such pers.on; -in other words, that the payee of the note therein named as guardian had the title thereto notwithstanding these words. (Jeffries v. McLean, 12 Mo. 538; 19 ib. 195.)
The judgment will be reversed and remanded,