Hudson v. Busby, 48 Mo. 35

Hudson v. Busby

48 Mo. 35 | Mo. | 1871

CURRIER, Judge,

delivered tbe opinion of tbe court.

Tbe plaintiffs sue upon a promissory note drawn by tbe defendant, tbe execution of which is admitted. Tbe defense set up is that tbe note was without consideration. The amended answer shows that tbe note was executed in consideration of tbe surrender by tbe plaintiffs of certain other notes held by them against tbe defendant and a third party. A state of facts’ is then alleged which is supposed to result in tbe conclusion that tbe surrendered, notes were executed upon no valid consideration.

*36The surrendered notes are alleged to have been given as a consideration for the assignment of a certain contract -which provided for the removal of dead animals from the limits of the city of St. Louis. The contract was originally executed under the authority of an ordinance amendatory of city ordinance No. 5433. It is alleged that the assignors had no “ assignable interest in the contract so as legally to transfer the same, or to vest any interest, right or title in the same in the assignee.7’ It does not follow from this that the assignee failed to derive from the contract all the practical advantages which could flow from an assignment which should have been in all respects legally operative and effective. Indeed, this is neither alleged nor pretended. It is not, therefore, shown that the surrendered notes were without consideration. The consideration of a note “ may be either a gain or a benefit of any kind to him who makes the promise, or a loss or injury of any kind suffered by him to whom it is made.” (1 Pars. Notes, 175, § 1.)

The defendant seeks to avoid liability upon his own note bec-ause of the supposed defect of consideration in certain other notes executed between other parties; and even the supposed defect of consideration in the original notes is not shown. The answer makes no defense.

. I fail to perceive that the alleged proceedings in the St. Louis Court of Criminal Correction, or the alleged subsequent repeal of the ordinance in question, bears upon the present inquiry. The plaintiffs moved for judgment notwithstanding the answer. The court, however, treating the application as a motion to strike out the answer, sustained it and allowed the defendant ten days in which to file an amended answer. No further answer being filed, the petition was in due time taken as confessed, and final judgment was entered up for the plaintiffs, from which the defendant appealed.

No injury resulted to the defendant from the form of the motion, and, as the answer contained no defense, I think the judgment should be affirmed.

The other judges concur.