CONCURRING OPINION BY JUDGE BIGGS.

The action of the circuit court in refusing to strike out portions of the reply is preserved in the record and is properly before us for review. The portions referred to were (1) that if the contract set forth in the answer was in fact entered into it was procured by fraud, misrepresentation and undue influence, and (2) that the deceased was by reason of old age and infirmity of mind, incapable of making a contract. Under our decision in Dwyer v. Railroad, 66 Mo. App. 335, and that of the supreme court in Och v. Railroad, 130 Mo. 27, these issues were improperly tendered in the reply and should have been stricken out., There was evidence introduced tending to prove the last issue, but as the defendaut’s evidence in support of the alleged defense was to the effect that the deceased expected and not that he had given all of his property to 0.0. Bosard, in consideration of his maintenance during the remainder of his life, the refusal of the court to sustain the motion to strike out was harmless error. I am justified in this conclusion both by the evidence and the opinion of the trial judge. The latter, which appears in briefs of counsel, shows that in disposing of the issues the circuit judge did not consider the question of want of capacity, but took the view of the evidence as above suggested. I therefore concur in affirming the judgment upon the ground that it is for the right party.

The defendants gave their note to Peter Bosard for $350, dated October 31,1892, due one year thereafter, with six per cent interest from date. The payee died on the fifteenth of March, 1895. Plaintiff is his administrator, and as such sues for the unpaid balance due on the note. Defendants answered separately, O. O. Bosard claiming to be the owner of the note under an express contract whereby it was given to him by the payee, his father, in consideration of services. Annie Bosard set up payment by her to her codefendant who she averred was the legal owner of the note. The reply was a general denial and an averment that the contract alleged in the answer was induced by fraud and undue inflence upon the mind of plaintiff’s intestate when it *631had become so weakened by disease as to render its possessor incapable of contracting. The ease was tried bythecourtwithont a jury and a verdict and judgment rendered for plaintiff for the balance due on the note, from which this writ of error is prosecuted by defendants.

The first error assigned is that the action is one at law and should have been tried by jury. In answer to this contention it is only necessary to say that the judgment certified by the- clerk in response to the writ of error herein contains the following recitals: “And thereupon this cause is called for trial, the parties announce themselves as ready, and neither party requiring a jury, the issues are submitted to the court, and the court sitting as a jury and having heard the evidence of witnesses and the argument of counsel and being fully advised doth on this February 3rd, 1897, find the issues, for the plaintiff and doth assess the amount of his recovery at the sum of $337.25,” concluding with a formal entry of judgment and award of execution.

competency of testimony of co-defendant. It is next urged that Annie Bosard, one of the makers of the note, should have been permitted to testify that the deceased payee released her from any obligation to him thereon, by giving the note to her codefondant. Such testimony would have been necessarily prejudicial to the rights of the deceased under her written contract to pay him the amount evidenced by the note. As he was prevented by death from testifying on the subject of her release from liability to him, the statute closes her lips. R. S. 1889, sec. 8918. The foregoing seems to be all the assignments of error argued m appellants’ brief, but some allusion is made to the refusal of the court to strike out that portion of the reply of plaintiff which alleged fraud in the procurement of the contract pleaded in the answer. If this ruling were properly before us for review, we should hold that appellants were not harmed by it, since the record shows that no evi*632deuce was offered in support of the issue as to fraud in the obtension of the contract tendered by the reply, but the whole testimony was confined to the affirmative defense pleaded in the answer. This having been determined adversely to appellants by the court sitting as a jury, there is nothing before us to review and the judgment herein is affirmed.