Caples v. Branham

20 Mo. 244 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

1. Bills and negotiable promissory notes, by the common law, imported a consideration. Between the immediate parties to such instruments, the consideration might be enquired into as between the maker and promisee, and the drawer and the acceptor. All other contracts not under seal, whether written or oral, required a consideration. In 1765, Mr. Justice Wilmot was' strongly of the opinion, and Lord Mansfield apparently so, that a written promise not under seal, carrying with it the evidence of deliberation, required no consideration. Their opinion did not obtain. There is no difference at common law between an oral and a written promise not under seal; they are both classed under the head of simple or parol contracts.

Our legislature, aware that men are not apt to promise to pay money without a sufficient inducement or consideration, and knowing that, in most instances, a consideration exists for promises, has changed the rule of the common law, and, at an early day, made all notes in writing executed and signed by any person or his agent, whereby he shall promise to pay to any other person, or his order, or unto bearer, any sum of money or property therein mentioned, import a consideration. The object of this provision was, to place notes not negotiable on the same footing occupied by negotiable notes, so far as the matter of a consideration was concerned. The writing showed deliberation, and, in the nature of things, there is no reason why the one instrument should not import a consideration as well as the other. We are aware that the credit of negotiable paper is sustained by considerations of commercial policy. The law provided for one class of promissory notes. The statute was designed to provide for all others. The instrument sued on is certainly a note in writing, signed by a party promising to pay money. There is no form prescribed by law to which we must adhere in the making of a promissory note: no formal words are required. If, in sense, it is a promise in writing to pay another money or property, it is a promissory note. A negotiable note, payable to a fictitious person, is a valid instrument, and may be declared on as one payable to bearer.

2. An objection to the instrument sued on being considered as a note within the statute, is, that it is made payable to trustees to be appointed by the educational convention of the Methodist Episcopal church south. Now, when the trustees are appointed, as has been done in this case, the note is one payable to those trustees. A bill drawn by one, payable to his own order, is a valid instrument. (Buller, 269.) So, a note ■payable to the heirs of E. C., by her marriage with W. C., has been held a valid instrument. (11 Mo. Rep. 144.) So, a writing signed by Wm. Muldrow and others, by which they promise to pay to Wm. Muldrow, or order, has been held to bo a note within the statute. (7 Mo. Rep. 563.) In this case, it is said, in good sense and sound principle, there is no difference whether the plaintiff was originally named or afterwards designated, according to the terms of the defendant’s undertaking ; so soon as the order was given, the promise attached and enured to the benefit of the person to whom it was given. The authorities referred to in the last cited case are in point, to show that the objection above named to the validity of the instrument under consideration, cannot be sustained. They are mostly taken fi*om the English books, and, upon reference to the statute of Anne in relation to promissory notes, it will be found similar to our own, and to contain the words, “ to pay to any other person or his order.” Thus, it will be seen, that the English and American authorities maintain that, although the statute requires a promissory note to be payable to any other person, yet it is no objection that the person is not designated at the time the promise is made, but it will be sufficient that he is ascertained before the institution of the suit.

3. In this state, ever since the statute of 1807, which allowed bonds and notes, when sued on, to be read in evidence, unless their execution was denied under oath, it has been held that promissory notes imported a consideration, and that, in an action on them, it was unnecessary to set out a consideration in the declaration. (Rector & Conway v. Honore, 1 Mo. Rep. 204.)

4. Under the former system of pleading, there would be an objection to this action, on the ground that a part of a debt due by instalments, was sought to be recovered as a debt. The money here sued for is claimed as a debt. A debt is not divisible. Strictly, this action, in form, should have been for damages. The objection, however, would probably not be available under the present practice act, and this suggestion is made .lest it should be thought that the court had impliedly overturned a principle -which may have application on occasions not arising in pleading. The other judges concurring, the judgment ■will be affirmed.