Cutting v. Conklin

Walker, J. It is urged, that the plaintiff below employed the singular instead of the plural number, in describing the defendants in his declaration. Whilst this is true in at least two places, yet in the beginning of the count they are described as “ the defendants; ” also, in the breach. In stating the manner in which they executed the note, the averment is, that the “defendant,” by the name and style of “Walker & Cutting,” promised- to pay, etc. This might possibly have been grounds of special demurrer, but not for arrest of judgment, had such a motion been interposed. It is not a variance, as it appears only to have been a mere slip of the pen, unimportant in its character, in nowise changing the sense. There is no person who would not say that the count was against the defendants. About this there can be no doubt, and is sufficiently certain. It is again urged, that in the date the month is written “Feb’y,” whilst in the declaration it is written in full. No objection seems to have been made, by the defendants on the trial, to the admission of the note in evidence. If there had been any force in the objection, which we by no means concede, it was waived by permitting it to be read without objection. It is insisted, that there was a variance between the declaration and the note. The note is payable to “ J. E. Conklan,” and the name is written in the declaration as “ J. E. Conklin.” This is one and the same name in sound, and falls within the case of Stevens v. Stebbins, 3 Scam. 25. It is urged as an error, that the note was described as having been assigned in writing, whilst, when produced, it was assigned in blank. The name of the payee was indorsed upon the note, and being in writing, it has always been held sufficient to pass the title to negotiable paper. The plaintiff had the right to fill it up on the trial, and would no doubt have done so, if the objection had been made. This objection comes too late, and is without force. It is lastly objected, that the finding was against the evidence. It fails to establish a payment. It appears, that an offer was made by the payee, to remit ten per cent., if the makers would pay money by a specified time, but whether on .this -or .other indebtedness, the witnesses are unable to state. Nor do they say what sum was paid. Such evidence is altogether insufficient to defeat a recovery on the note. The objections raised upon this record are all wholly without any force, and the judgment must be affirmed. Judgment affirmed.