Appeal from Madison Circuit Court. — Son. Robt. A. Anthony, Judge.

STATEMENT.

Plaintiff sued defendant before a justice of tbe peace on tbe following promissory note:

“$90,00. Post Office, Fredericktown, Mo., 2-26, 1902.

“For value received I promise to pay to tbe order of W. W. Kimbal Co. (incorporated) Chicago, 111., with exchange, ninety dollars, payable at Madison County Bank, Fredericktown, Mo., as follows: $10 cash, balance $80 in one year from date, with interest at tbe rate of six per cent per annum until paid. Tbe drawers and indorsers severally waive presentment for payment, protest and notice or non-payment of this note.

“James Price.”

On the back of this note was written the following assignment :

“ Pay to J. E. B. Powell,

“W. W. Kimbal Company.”

Plaintiff lost in the justice’s court and appealed to the circuit court where the verdict was again against him, and he appealed to this court. The defense was a plea of non est factum under oath.

Plaintiff testified that he sold defendant an organ and, in part payment, took the note sued on and a chattel mortgage on the organ to secure the same, both of which he stated the defendant signed and delivered to him, after reading them, and that the note was assigned to him for value by the Kimbal Company.

John Tawfall testified that he was present at defendant’s house when the trade for the organ was made and witnessed the transaction; that plaintiff bought the organ and he saw him sign the note in suit.

Mrs. Tawfall testified that she heard very little about the purchase of the organ, the sale having been almost completed before she arrived at defendant’s residence that morning; what she heard being mostly about signing the note and mortgage; that she saw Mr. Price sign the note and discovered from the conversation that he had purchased an organ; that she recognized the signature to the note sued upon as that of Mr. Price; and that he said to her while they were all upstairs looking at the organ; “You haven’t got ahead of me with your organ. I didn’t intend to buy any organ now; I haven’t got the furniture to match, and aint fixed up to buy an organ, but I can get the organ and can get the furniture afterwards to match the organ.”

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How this case has been treated — in progress