212 N.W. 866 | S.D. | 1927
This appeal is from an order overruling a demurrer to a complaint, the grounds of demurrer being: First, that the plaintiffs have not legal capacity to sue; second, that there is a defect of parties plaintiff; third, that said complaint does not state facts sufficient to constitute a cause of action. The complaint is as follows:
“(i) That the plaintiffs herein, prior to the commencement of this action, were by the creditors of the Citizens’ National Bank of Sisseton, S. D., appointed as the trustees of said creditors for the purpose, among other things, of collecting all accounts due said Citizens’ National Bank on behalf of said, creditors; that said
“(2) That heretofore and on the 2d day of January, 1924, the defendant, for value received, made, executed, and delivered to the Citizens’ National Bank of Sisseton, S'. D., his certain promissory note, wherein and whereby he promised and agreed to pay to the said 'Citizens’ National Bank of Sisseton, S. D., on the 2d day of April, 1924, the sum of $4,130, with interest thereon at the rate of 10 per cent from date until paid.
“(3) That the defendant has failed, refused, and neglected to pay said note or any part thereof, although often requested so to do.
“(4) That there is now due and owing on the said note from the said defendant, to the plaintiffs 'herein, as trustees, the sum of $4,130, with interest thereon at 10 per cent per annum since the 2d day of January, 1924.
“(5) That prior to the commencement of this action the-said note was duly assigned and transferred to the plaintiffs herein, as trustees of the creditors of said Citizens’ National Bank of Sisseton, S. D.”
Irrespective of whether or not there has been, in this complaint, a sufficient allegation by the plaintiffs of their representative character, the facts showing the trust relation, the circumstances of their appointment, and the powers with which they are vested, as the rules of pleading demand (39 Cyc. 458), the complaint was insufficient, and the demurrer should have been sustained, for the reason that there is not contained -within the complaint any sufficient allegation of indorsement of a negotiable instrument or assignment of a nonnegotiable instrument by the payee named- therein. Etven though said complaint 'had sufficiently stated facts showing plaintiff’s representative character and trust relation, by what words is the gap in the chain of title between the payee bank and the plaintiff trustees bridged? Throughout this complaint, plaintiffs have avoided saying that they are the present holders of said note, or that said note was indorsed by the payee in writing, or assigned by the payee in writing, or delivered by the payee, or that the plaintiffs are now in the possession of-said note. In an action by one other than payee, it is necessary to allege facts showing plaintiff’s title or right to sue.
It will be observed that the complaint does not state that the note was made payable to order; nor is the note set out in haec verbse, so that if it were payable to order that fact might be ascertained. While no useful purpose will be served, so- far as the present appeal is concerned, by speculating upon whether title in the plaintiff has been sufficiently alleged in the plaintiff had negotiability of the note also been alleged, in order to avoid a repetition of error upon amendment of the pleading, we have made a rather extended search of authorities on the sufficiency of allegations as to indorsement, assignment, and ownership; yet we have only found one case where the words “duly assigned and transferred” have been interpeted to mean “duly assigned and transferred by the payee,” and, in that case, the allegation was strengthened by the allegation that the plaintiff “has ever since been and now is the holder thereof,” and the further allegation that such assignment was in writing. The court also said:
“While we are of the opinion that the demurrer was not well taken, it is proper to say that the method of setting forth so simple a cause of action adopted by counsel is not to be commended; and that, 'by the exercise of slight care, he could easily have avoided the annoyance and delay caused by the interposition of the demurrer.” Topping v. Clay, 65 Minn. 346; 68 N. W. 34.
This court has said:
“The omission to' state a fact in the complaint material to the plaintiff’s right to recover cannot be supplied by intendment, unless it is a fact of which the court will take judicial notice, or other facts are stated that necessarily imply the existence of the fact omitted.” Andrews v. Wynn, 4 S. D. 40, 45, 54 N. W. 1047, 1048.
Under the title “Bills and Notes,” in Corpus Juris, we find that the rule that, in an action upon a note payable to another than plaintiff, it is necessary to allege facts showing plaintiff’s title or right to sue, applies equally well to actions on nonnegotiaible in
The order overruling the demurrer is reversed.