Harris

Plaintiff sued on a promissory note in the sum of $728.48. The defendant answered,' admitting the execution of the note, .alleging lack of consideration, and denying that there was any sum unpaid, due or payable. At the trial the defendant offered to prove an agreement between the payee and the defendant whereby the indebtedness evidenced by the note was satisfied and the note canceled. An objection was interposed by the plaintiff on the ground that the testimony was incompetent, irrelevant and immaterial, and tending to vary the terms of a written instrument, attention being called to the fact that payment was not plead. The court overruled the objection with the statement, “I will hear the testimony and strike it out in the event it is not admissible.” No motion to strike was made. The court found that the note had been paid and canceled and that no obligation from the defendant to the plaintiff existed. Judgment was accordingly rendered in favor of the defendant and the plaintiff appeals therefrom.

Appellant contends that the testimony admitted was proof of an accord and satisfaction which must be specially pleaded before the same may be introduced, and that the evidence was…