19 Ill. 167 | Ill. | 1857
This was an action of assumpsit. The declaration contained a special count upon a promissory note, executed by the defendants to the plaintiff below, and the common money counts. The defendants pleaded the general issue, and the cause was tided by the court. Upon the trial, the plaintiff offered in evidence a promissory note, executed by defendants to the plain-tiff, but the same being objected to as variant from that described in the special count, was rejected.
The plaintiff then proved the execution of the note by the defendants, and that the consideration of it was real estate, sold by the plaintiff to another party, and offered the note in evidence, under the common counts. The court admitted the note under those counts, and rendered judgment for the plaintiff.
Where a contract has been fully executed on the part of the plaintiff, and nothing remains to be done under it but the payment of money, which payment it is the duty, under the contract, of the defendant to make, the plaintiff need not declare specially, and may recover in indebitatus assumpsit. 2 Phillips’ Ev., chap.'9, p. 108.
A promissory note imports a consideration, and it is unnecessary, under the general issue, to prove a consideration aliunde ; and it is wholly immaterial whether the real consideration be money lent, work and labor, land sold, a balance found due upon an account stated, or other thing that is money’s worth.
It is a money demand, payable absolutely, containing its own evidence of consideration, and, as a rule of pleading, may be recovered under the common money counts.
These counts were originally introduced to afford facility and certainty in actions for mere money demands, avoiding the prolixity of special counts, and the hazard of variance from particular description of the contract sued on. The gist of these counts being money due, the note was recoverable under them, whatever might have been the consideration (good in law) for which it was given. This is directly decided in the following cases: Smith v. Van Loan, 16 Wend. R. 659; Payson v. Whit-comb, 15 Pick. R. 212; Hughes v. Wheeler, 8 Cow. R. 77.
Judgment affirmed.
