35 Mo. 312 | Mo. | 1864
delivered the opinion of the court.
Plaintiff states that on the 10th day of December, 1859, the defendants (John Duff and William Osborne) were co-partners under the name and style of John Duff & Co. Plaintiff states that on the 10th day of December, 1858, one John McGuire and A. Swartward drew their certain order
At the trial, the evidence established a case substantially as stated in the petition, and judgment was given for the plaintiff.
The court by its instructions, and subsequently by overruling a motion in arrest of judgment, decided that the facts stated in the petition constituted a cause of action.
That section does not include this case, because here there was no destruction of the bill or refusal to return it. They are not liable as acceptors.
Judgment reversed and cause remanded.
I think the acceptance of the bill is substantially alleged in the averment, that the defendants on presentment for acceptance “ promised on said day to pay to plaintiff on the 3d day of January, 1859, the said sum of $297, and that the petition is therefore sufficient. The acceptance of a bill is but the promise of the drawee to pay the sum requested to the payee. All this is alleged of the defendants in this case ; it matters not that the pleader departed from the phraseology usually employed in averring acceptance. In declaring on an acceptance it is not necessary under our Practice Act, any more than it was at common law, to aver that the acceptance was in writing, or the existence of the circumstances which imply an acceptance (R. C. 1855, p. 1618, form No. 5), and, therefore, the omission to show that the promise of the defendants was in writing is no ground of objection to the petition in this case. Whether on the trial proof of a verbal promise would be sufficient, or what evidence would be required to support the allegation, is not the question. The question is one of pleading and not of evidence.