Shriner v. Lamborn ex rel.Smith

Bartor, J., delivered the opinion of this court. This suit was instituted on the 30th day of August 1856, to recover the amount of a single bill dated the 10th day of May 1853, whereby the appellant promised to pay, on or before the 10th day of May 1855, to Dr. Lewis Lamborn, two hundred dollars, with interest from date. On the back of said single bill was the following assignment: “For value received, I assign and transfer the within single bill to Joshua Smith. L. Lamborn.” The declaration is, in debt, in the usual form, Lamborn being named therein as plaintiff.

The use was entered at the institution of the suit, The defendant pleaded payment, and issue was joined. The bill of exceptions states “that it was admitted (at the trial) that the signature of L. Lamborn, on the back of said single bill, under the assignment thereon written, which assignment over the name of said Lamborn, on the back of said single bill, was filled up by the plaintiff, Smith, at the trial of fhe cause, is the signature of said Lewis Lamborn, the payee ¹⁷⁴ of said single bill, and was endorsed thereon prior to the 8th day of May 1854, and was so signed on the back and delivered by said Lamborn to the said Smith, for whose use this case is entered, at the time of said endorsement, and that, the defendant, Shriner, had notice of such endorsement and delivery by said Lamborn, prior to the said 8th day of May 1854; upon which the plaintiff, Smith, rested his case. The defendant then, to sustain the issue on his part, offered in evidence the following receipt, it being admitted that it was executed by Lewis Lamborn, the plaintiff above named, according to its purport, as follows: “Received, May the 8th, 1854, of W. E. Shriner, payment in full of notes given to me by W. E. Shriner, dated the 10th day of May 1853, as follows: One of two hundred, due May 10th, 1855; one of two hundred, due May 10th, 1856; one hundred and fifty, due May 10th, 1858; and one of fifty dollars, due conditionally May 10th, 1858. These notes now in the hands of Joshua Smith, and which I promise to take up and return to W. E. Shriner, on or before the first of July next.

L. Lamborn. “Which evidence was offered to the jury by the defendant’s counsel, to sustain the plea of payment; to the offering of which evidence, for such purpose, the plaintiff, Smith, by his counsel, objected, which objection the court sustained, and the defendant excepted. ” The right of the plaintiff to fill up the blank with a full assignment, is established by the decision of the Court of Appeals, in Chesley vs. Taylor, 3 Gill, 251 . The single question presented for the consideration of this court is, whether the evidence offered was admissible, under the pleadings in the cause, for the purpose of proving payment? In the determination of this question, it must not be forgotten that we are dealing with a case at law. So far as the pleadings disclose, \h&plaintiff is Lewis Lamborn.

The plea in bar alleges in terms “payment to the said plaintiff,” and on this plea issue is joined.- The proof offered tended to show a payment to the plaintiff, and ought to have been admitted by ¹⁷⁵ the court; it was precisely in conformity with the plea. The Court of Appeals have said, in the case of Mitchell, Admr., vs. Williamson, 9 Gill, 77 , “When a party takes issue in fact upon an allegation not constituting a legal bar to his action, he cannot successfully ask the court to rule out testimony, if it be in proof of such allegation.” That principle was announced with reference to a plea in which the court say they did not perceive that the matter therein alleged proved any legal defence, or a bar to the action. And that ruling of the court, which is in conformity with the well established principles of pleading, is an authority decisive of the case before us. There is no doubt of the soundness of many of the positions assumed by the appellee’s