93 Mo. 417 | Mo. | 1887
On the fourth of March, 1885, the Mechanics’ Bank, the firm of Lichtenstein Brothers & Company, and S. M. Lederer, procured judgments of confession against J. I. Mayer. The three last-named persons then filed their motion to set aside the judgment in favor of the Mechanics ’ Bank, which was overruled, and they appealed.
The motion is based on the ground that the statement on which the judgment by confession was entered is defective and insufficient in this, that it does not give a description of the bills of exchange; that there is no allegation that the bank paid any consideration for them: that there is no allegation that the bills of exchange were delivered to the bank; and that the amount of the judgment confessed is in excess of the amount due. The statement is, in part, as follows:
“Whereas, I, J. I. Mayer, of the city of St. Louis, doing business under the name and style of J. I. Mayer & Company, am indebted to the Mechanics’ Bank of the city of St. Louis, state of Missouri, a banking corporation incorporated under the laws of the state of Missouri, in the sum of $6,944.00, on account of three certain bills of exchange, of which my said firm are the drawers. The facts out of which the indebtedness arose are as follows: Being in need of money on the twentieth day of January, 1885, I did, on the said twentieth day of January, 1885, at the city of St. Louis, make my bill of exchange in writing, and directed the same to A. Mayer & Son, Cardington, Ohio, and thereby requested them to pay to the order of ourselves the said sum of $2,160.00, sixty days after date ; that my said firm, J. I. Mayer & Company, indorsed said bill of exchange; that the said A. Mayer & Son then and there accepted said bill for our accommodation, and promised to pay the sum ac*421 cording to the tenor and effect thereof, at 900 Olive street, St. Louis; that thereupon I negotiated the same to said Mechanics’ Bank before maturity, for the said sum of $2,160.00, less a discount at the rate of eight per cent, per annum.”
The statement as to the other two bills of exchange is substantially the same as the one given, save that one bears date and was negotiated on the seventh of February, 1885, due at sixty days, and for the sum of $1,892.00; the other bears date of March 3, 1885, was drawn on Lichtenstein Brothers & Company, of New York, endorsed by Mayer, and for $2,892.00. Authority Is then given to the court to enter judgment for $6,944.
According to the statute, the statement must give the amount of the judgment, and, “if it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due.” R. S., sec. 3697. In Bryan v. Miller, 28 Mo. 32, the consideration of a note, which was described, was stated to be goods, wares, and merchandise, sold by plaintiff to defendant. No time of sale was given, nor was there a description of the particular kind of property given. The statement was held to be defective, but the court said, in substance, that the statement need not be as particular as a bill of particulars. The object of the particularity is to afford a clew to a creditor, if there should be fraud and he desired to investigate it. Manifestly, the degree of particularity must depend upon the character of the transaction. If the debt is a note given for- goods, a reasonably specific bill of the goods, showing the dates of sale, should be given. This would enable the creditors to trace out the transaction. If a note, and it was given for money loaned, it is enough to say so, describing the note.
Here the bills of exchange were described with great particularity, and the dates of the respective
There is no substantial objection to this statement, and the judgment is affirmed.