Muldrow v. Tappan

| Mo. | Jun 15, 1840

Opinion of the Court delivered by

M’Girk Judge.

Arthur T.appan and others brought an action of assump-sit on a promissory note for one thousand dollars against William Muldrow. The defendant pleaded non assumpsit, .and on this issue the parties went to trial; the plaintiff" gave his note in evidence, and, thereon, the defendant had judgment against him for the thousand dollars and interest.' — • Ke then moved for a new trial which was refused. He then moved in arrest of judgment for defect in the declaration, which the court over ruled. The defendant brought his cause here by writ of error, and assigns for error the de-lect m the declaration. The declaration begins by declaring that Arthur Tappan and others complain of William Mul-drow of a plea of tresspass on the case on promises, for that whereas heretofore, to wit, on the 13th of May, 1835, at the county of Marion, in the State of Missouri, the said defendant did, by his certain writing which he signed and executed by the name of Will. Muldrow, contract and agree to and with the plaintiff in the words and figures following, to wit- Then follows a copy'of the note or writing sued on. It is no where averred that the defendant promised any particular thing, but the note is set out without any averments . . J mmg a promise. In 1st Chitty’s pl. 329 and note 2, it is laid, down, that the declaration mint aver, or assert a promise on its face, or it must contain words equivalent toa promise. - There. is a case where the plaintiff shewed the defendants liability on a bill of exchange as drawn, but orlbtted to say that he promised, 1st Chitty pl. 330. This, was, after verdict, holden good, see note 1, in the last page; but in this case, the plaintiff shows no liabili* ty. The regular mode to do lie. is to aver that the defendant made his no.te or bond;, by which he promised to pay the plaintiff so much money, at such a time. For this defect the judgment ought to have been arre -ted. The judgment is reversed with costs, and remanded for a new trial with- leave to amend on payment of costs of amendment.