Sapington v. Jeffries

15 Mo. 628 | Mo. | 1852

Ryland, J.,

delivered the opinion of the Court.

The question in this case involves the propriety of the ruling of the court below, in sustaining the motion of the plaintiff, to strike out the defendant’s answer.

The defendant’s counsel contends, that the answer was good and sufficient, and that the court erred in sustaining the motion to strike it out. He contends, that it, is a good defence, for a security in a note to show that he gave verbal notice to the plaintiff’s agent, or attorney, to sue on the note, and that the agent neglected or failed to sue.

The answer in this case sets forth no facts, amounting to a defence in law, to the plaintiff’s petition. The defendant’s facts might all have been admitted, and still they would not have entitled him to a judgment.

The general averment that he did not owe the money sued for, or any part thereof, is not sufficient under the new code; he must answer the plaintiff’s petition, by stating facts. He will not be permitted to plead generally, nil debit, on assumpsit. His answer must state the facts which he relies on as a defence to the petition of the plaintiff.

The statute authorising any person bound for another, in any bond, bill or note, for the payment of money, or property, as security, to give notice to the person having the right of action, forthwith to commence suit against the principal debtor, and other parties liable, requires the notice to be in writing; and the service of the notice to be on the person having the right of action on the instrument, personally, or by leaving a copy at his usual place of residence, with some white person of the family over the age of fifteen years.

The notice spoken of in the answer, was a verbal notice; it was given to the attorney or agent of the plaintiff, and because he was prudent or cunning enough to make no objection to the notice, the defendant takes it for granted that he accepted it as sufficient. He was not the person upon whom motion to sue was to be served, in order that upon a failure to exonorate the security, under the terms of the statute.

The security is held strictly to pursue the terms pointed out by the statute, before he can be discharged. The answer of the respondent was, in the opinion of this court, properly stricken out. . No better mode is perceived to get clear of an answer, failing entirely to show a defence to the action. To strike it out is the shortest and the quickest mode.

The judgment below is affirmed,

the other Judges concurring.