Lucien Peyton and Alfred Allen, appellants v. Alexander Tappan, appellee, 1 Scam. 388

Lockwood, Justice, delivered the opinion of the Court: This was an action of assumpsit, commenced in the Municipal Court of the City of Chicago, by Tappan against Peyton and Allen. The plaintiff declared on two promissory notes. The declaration alleges that the defendants made their notes, and thereby promised to pay the plaintiff the sums of money therein named. The declaration also contains the common money counts. The defendants pleaded non assumpsit. The cause was tried by the Court without a jury.

On the trial of the cause, the defendants demurred to the evidence of the plaintiff, to which the plaintiff joined. The demurrer states that the plaintiff read the notes on the trial, by which it appeared that the notes were payable to A. II. Tappan. The plaintiff also proved that Alexander Tappan, the plaintiff, and A. H. Tappan were the same person, and the holder of the notes. On this evidence, the Court below gave judgment for the plaintiff. It is assigned for error that the Court overruled the defendants’ demurrer to the plaintiff’s testimony.

It was contended on the argument, that in order to receive the note and oral testimony as evidence, it ought to have been alleged in the declaration, that the note was made to the plaintiff by the name of A. H. Tappan. This mode of declaring is unnecessary. The averment in the declaration that the note was made to the plaintiff, is proved by producing a note payable to A. H. Tappany and proving that A. H. Tappan and Alexander Tappan are the same person. The evidence was also admissible under the money counts. The judgment is therefore affirmed with costs. Judgment affirmed.