Weddle sued the appellant upon a writing executed by said Buntin to one Leannah Buntin on the 6th day of April, 1857, by which he agreed to support said Leannah, (she being his mother,) during her life, or pay her sixty dollars per annum, if she should not remain with him. The plaintiff averred that on, &c., she became dissatisfied at, &c., and took up her residence at the house of the plaintiff, and did assign and deliver said article, &c., to him, on the faith of which he had maintained the said Leannah, &c. The son and the mother, the latter to answer as to' her interest, &c., were made defendants.
There was a demurrer to the complaint overruled. It is surged that it is insufficient, because it does not show how it was assigned. As it is a writing not assignable so as to transfer the legal interest to the assignee, even by a writing, it was ,not material, as the alleged assignor was made a party, how -said'assignment was made.
Leannah .answered, without oath, claiming an interest in dhe written contract, and that it was still hers, &c. The other defendant answered, admitting the execution of the writing, .and that only the sum of, &c., had been paid thereon, leaving ibut-60 dollars having been due thereon at the commencement iof said suit, and as to that sura, that said Leannah was indebted to him in the sum of 900 dollars for building a house .for her, as per a written agreement between them, dated January 19, 1857. A set-off is therefore prayed, to the amount !>of said 60 dollars.
2d. Want of property, or interest in,-or right to sue upon, said writing, upon the part of said plaintiff, and that defend•ant had been guilty of no breach thereof.
Reply to each answer in denial.
Trial by the Court, finding and judgment,against-said appellant for 60 dollars.'
*451 Nave Witherow, for the appellant.
L. M. Campbell, for the appellee.
The-finding and .judgment are not special as to the issue upon the answer of said Leannah
. It is urged that the general finding and judgment did not dispose of the issue formed upon the answer of said female defendant; and that until -the same was disposed of, .no finding could be maintained in favor of the plaintiff, because .there would be a want of capacity to sue, on his part, upon said instrument.
This position, in our opinion, is not well taken. "We suppose that the issues were all submitted to the Court upon .the trial, and as, according to the argument of the appellant, the issue made upon the answer of Leannah would have to be disposed of before the other could be considered, we must presume, in view of the finding, that it was passed upon by the Court.
It is manifest that the agreement in reference to the erection of a house, &e., was superseded by that upon which suit is brought, and, therefore, there is nothing in the point presented on the failure to give effect to the evidence in relation to the claim for building said house. It appears the land upon which the house stands was conveyed to the defendant in pursuance of the agreement upon which suit is based.
The judgment is affirmed, with 5 per cent, damages and costs.