Bick v. Clark

134 Mo. App. 544 | Mo. Ct. App. | 1908

GOODE, J.

The question on this appeal is whether the following petition is good, a demurrer having been sustained to it and final judgment entered on the demurrer:

“Plaintiff for his second amended petition, by leave of court first had, for cause of action against defendants states that defendants executed, signed and delivered their promissory negotiable note for value received to R. B. Palmer & Sons, for $57 dated November 2T, 1893, due in one year after date with eight per cent interest from date to compound annually, which- note was assigned and transferred by R. B. Palmer & Sons for value received to J. J. Bick, this plaintiff, on December 9, 1902, and is attached with the original petition in this suit marked ‘Exhibit A’ and made a part of this procedure; that the principal and interest of said note is now long since past due, owing and unpaid, with damages aggregating $250,- for which amount plaintiff asks and prays for judgment against defendants with eight per cent interest to compound annually and costs of suit.”

The note declared on was attached to the petition as an exhibit. There is no brief for defendants, but we suppose the contention in favor of the demurrer is, that the petition contains no averment of a promise by defendants to pay the note; and this, it seems, would have been a good point under the early decisions enforcing the common-law rules of pleading. [Muldrow v. Tappin, 6 Mo. 277; Moore v. Platte Co., 8 Mo. 467.] It is sufficient under the code to state facts in an action in assumpsit from which a promise to pay will be implied. [Nat’l Bank v. Landis, 34 Mo. App. 433, 440.] This petition alleges the execution, signing and delivery to R. B. Palmer & Sons of a negotiable promissory note and states the principal, the date of execution, date of maturity and the interest as they are given in the note. A.promissory note is defined to be “An unconditional promise in writing for tbe payment of a certain sum of money absolutely.” [3 Kent, Comm., 74; Daniel, Nego. Inst., sec. 28.] An allegation that a promissory note was executed and delivered necessarily implies a promise by tbe maker to pay, and an allegation that sucb a note was executed and delivered to a person or persons named (in tbis case Palmer & Sons) implies a promise to pay whomsoever is mentioned. Tbis might not follow from a mere allegation that it was delivered to said person, but when tbe averment is also that it was executed to it be is sufficiently designated as tbe payee to give him, prima facie, tbe right to transfer tbe note by assignment. In tbe case of Bank v. Landis, cited supra, tbe pleader described tbe note as one whereby, for value received, tbe defendant promised to pay to tbe order of the plaintiff tbe sum mentioned. Tbis, however, was but a statement of tbe terms of tbe note and not a distinct averment of a promise to pay; and tbe contention in that case was there should have been a distinct averment. Though in tbe present case tbe petition does not describe tbe note as containing a promise to pay, tbe description of it as a promissory note implies that it contained sucb a promise. We have no doubt tbe petition states a good cause of action and tbe judgment will be reversed and tbe cause remanded.

All concur.