5 Blackf. 105 | Ind. | 1839
Robinson and another sued Westbrook on a promissory note for 10Ó dollars made by him on the 27th of February, 1837, to one Knickerbacer, payable in ninety days, and assigned by the latter to the plaintiffs on the 29th of March of the same year. Pleas, the general issue, payment, and former recovery ; issues on all the pleas ; trial by the Court without a jury, and judgment for the plaintiffs for the -amount of the note.
On the trial, the defendant offered in evidence the written acknowledgment of the plaintiffs to Knickerbacer, of the same date with the assignment of the note, that they had received it of him in security for the sum he then owed, or should at the maturity of the note owe them, and their promise to return the note on the payment of the sum due. The defendant also offered to prove the written admission of the plaintiffs that Knickerbacer owed them but 20 dollars ; and he further produced Knickerbacer’s receipt in full for the note dated July the 5th, 1837, stating that it had been left as a pledge with the plaintiffs. The testimony was all objected to by the plaintiffs, and excluded by the Court. The defendant excepted.
We think the testimony should have been received. It is evident from the whole transaction, that the real object of the plaintiffs and Knickerbacer was the security of the debt which the latter owed the former. By the assignment of the note, which was made to effect that object, it is true, the legal ownership of it was vested in the plaintiffs, and they were authorised to sue in their own names, or to collect the whole amount of the note without suit. But the equita
As the defendant had notice the note was pledged when he paid it to Knicherbacer, he acted at his peril so far as the interest of the plaintiffs was concerned, and no farther.
An objection was made to the admission of the note in evidence, on account of an alleged variance arising from the misspelling of Knicherbacer’s name in the note. The objection was properly overruled ; there was no material variance.
The judgment is reversed, and the proceedings subsequent to the issues set aside, with costs. Cause remanded, &c.