
    Patterson, Assignee, v. Graves.
    In a suit on a promissory note by an assignee against the maker, the declaration alleged that the promise was to pay to the order of certain persons trading under the name of W. and R. P. Resor, (but by mistake written on the face of the note W. R. and P, Resor, meaning, however, the said IV, and R. P. Resor;) that TV. and R. P. Resor indorsed the note, &c. Held, that the note, though it purported to be payable to TV. R. and P. Resor, was not objectionable as evidence on the ground of variance.
    
      Tuesday, June 29.
    ERROR to the Montgomery Circuit Court.
   Dewey, J.

The declaration alleges that the defendant below made his promissory note, and thereby “ promised to pay to the order of certain persons, trading and doing business by the name and description of W. and R. P. Resor, (but by mistake written on the face of said note W. R. and P. Resor, meaning, however, the said W. and R. P. Resor,”) &c.; that W. and R. P. Resor indorsed the note to Tipton and Patterson, who indorsed it to the plaintiff Plea, general issue. On the trial, the plaintiff offered in evidence a note purporting to be executed by the defendant, payable to W. R. and P. Resor, indorsed by W. and R. P. Resor to Tipton and Patterson, and by them to the plaintiff. The defendant objected to the admissibility of the note, and the Court rejected it. Judgment for the defendant.

We think the Circuit Court committed an error in excluding the evidence. There was no variance between the note described in the declaration, and that produced on the trial. It is competent for the holder of a promissory note, or other instrument, to declare upon it as a promise made to himself, in a name different from his own, and to prove that he was the person intended. Willis v. Barrett, 2 Stark. 29.—African Soc. v. Varick, 13 Johns. 38. See, also, Lasselle v. Hewson, and Taylor v. Coquillard, decided in this Court, May term, 1839. The same principle is recognized in Williamson v. Johnson, 1 B. & C. 146. The instrument in which the mistake occurs is, of course, legal evidence, whether it be sued, on by the payee, or by another person to’ whom it has been transferred.

W. Wright, for the plaintiff.

R. C. Gregory, for'the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  