Cabbott v. Radford

17 Minn. 320 | Minn. | 1871

By the Court.

Berry, J.

While the complaint in this case is by no means to be commended, we are nevertheless of opinion that it sets up in a slovenly form a substantial cause of action in the plaintiff. The presumption is, that the “ plaintiff J. L. Cabbott, and one Lester,” to whom the note is alleged to have been delivered, were the payees and owners thereof, for the same reasons assigned for a like presumption in Hayward vs. Grant, 13 Minn. 168; and if so, then the alleged indorsement by the “ said Lester ” would vest the entire property in the note in the plaintiff. See Chaffee vs. Taylor, 5 Allen 598.

It is not alleged, nor does it appear, that the promissory note declared on and set out in haec verba in the complaint, is stamped as required by the laws of the United States.

In support of his general demurrer the defendant argues that the note is therefore to be taken to be void, so that the complaint states no cause of action.

To this argument there are, at least, two ready answers. First, a stamp is no part of a note; so that it does not follow that a note is unstamped, because no stamp or copy of stamp .appears upon a copy of the note which the complaint purports to set out. As, in the absence of a showing to the contrary, the presumption would be that the note alleged to have been made and executed was properly stamped, it could not in any event be said that a complaint in wbicb it did not appear tbat it was not properly stamped failed to state a cause of action. Smith vs. Jordan, 13 Minn. 271; Campbell vs. Wilcox, 10 Wallace 422.

Second, it is only a fraudulent omission to affix a stamp wbicb renders an instrument invalid. Campbell vs. Wilcox, supra; Green vs. Holway, 101 Mass. 243. So tbat even if it appeared affirmatively tbat there was no stamp upon tbe note in this case, it would not follow tbat it was therefore void.

Order overruling demurrer affirmed.