24 Mo. 164 | Mo. | 1857
delivered the opinion of the court.
There is no error in this record. Although the legal ownership of the note was not transferred — the assignment being on a separate paper and not on the note, as required by the statute— yet the beneficial ownership passed, and the assignee became the real party in interest, and entitled as such to sue upon the note in his own name.
As to the amendment and the proceedings consequent on them, we remark that, whether the alleged want of correspondence between the proof and the allegation be considered a mere variance or an entire failure of proof, as defined in our written law, the plaintiff has no cause of complaint on account of the course of the court in reference to it. There is no pretence that he was in fact misled by it; nor indeed could he have been misled, as the instrument itself was filed in the cause and pointed out to him as the obligation sued on. In every view of the matter, he was rightly required to file his answer and proceed to trial at the same term and without any unnecessary delay.
The parol evidence, in reference to the note sued on being the one referred to in the assignment, was properly receivéd.. Such evidence must always be admitted to determine whether any particular thing is the object referred to in the written instrument ; in other words, to show that the thing demanded answers to the description given of it in the written contract. To take the simplest case, if, in the conveyance of an estate, it is described as blackacre, parol evidence must be resorted to for the purpose of showing what field is known by that description. The point of contention in this ease wa3, whether the note sued on was one of the two notes referred to in the written assignment. These notes were described by their date, amount and time of payment, and by the additional fact of their being
The matter is too clear to require any authority or argument in support of it. The judgment is affirmed.
