Atwood v. Lewis

• Decision Date: 31 May 1840
• Parties: ATWOOD v. LEWIS.
• Court: Missouri Supreme Court

6 Mo. 392

ATWOOD

v.LEWIS.

Supreme Court of Missouri.

May Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

HAMILTON, for Plaintiff in Error. 1. A demurrer cannot be amended. It is believed there is but one instance on record, in which it was ever attempted. Maynard v. Hopkins, Say. 46. This is manifest upon principle, The party cannot thus be permitted to change under or depart from the grounds of demurrer as originally taken. An improper grant of oyer does not affect a case in which it is granted. Wright's Reports, 10. The oyer furnished has not been made an available feature in the record, as it does not appear on the face of the plaintiff's own pleading. 1 Chitty, 468. It being accidentally incorporated into the record does not make it a part of the pleadings. The principal causes of demurrer specified, therefore, do not apply. 2. The second plea contains a good defense. Chitty on Bills, 161, 162. 3. The third plea is valid. Chitty on Bills, 164; 1 Wendell, 317. 4. The plaintiff's declaration is bad, petition and summons is not the remedy. Rev. Code, 105, § 7. 5. The agreement was conditional. Kirby's Reports, 364. It was made to depend upon the defendant's ability or convenience to pay. This must be shown. 7 Johns. 36; 17 Wendell, 419. 6. If the oyer be spread upon the record so as at all to be brought to the notice of the court, it was sufficient to have shown the court that interest was not due by the contract, except upon the condition set forth. The court allowed interest in full. 7. But supposing the oyer to have been regularly ordered, and that the plaintiff had made it a part of his pleading, the 1st, 2nd, 3rd and 4th cause of demurrer to not apply, inasmuch, as we do not proceed for the penalty under the agreement. We set forth a condition, making part of the original contract, in the one plea, and in the other, an agreement for a valuable consideration to extend the time of payment. That the performance of these is secured by a penalty, does not convert the defense into a proceeding to enforce that penalty. We show an agreement differing from that upon which the plaintiff brings suit, or so modifying or qualifying its terms as to enable us to insist that he is premature in suing for the recovery of the amount of the notes. 5. This specification does not apply, for the same reason that the plaintiff erroneously regards the defense as an effort to enforce the penalty. 6. The pleas go to the whole action, in alleging that which shows the debt is not yet due. The defendant has a right to set up the agreement by way of defense. 6 Wendell, 291. 7. It is an admitted principle, that it is not sufficient merely to allege quid duplex et curet forma, but the point that is so must be precisely pointed out. 8. The convenience or ability of the defendant to pay is the issue tendered. If part of the contract, this must be shown. 7 Johns, 36; 17 Wendell, 419, already referred to. 9. If the pleas be contradictory and inconsistent, the statute furnishes a remedy. Rev. Code, 459, § 24.

DARBY, for Defendant in Error. In looking into the record in this case, it will be seen that the only question to be decided is, whether the Circuit Court erred in sustaining the demurrer to the second and third pleas of the defendant. These pleas are manifestly defective on general demurrer. The second plea is defective for want of certainty as to time and amount. Stephen on Pleading, p. 341; Comyn's Digest, Pleader, ch. 19; Denison v. Richardson, 14 East, p. 294; Stephen's Pleading, p. 345. The plea, therefore, should have stated specifically that the plaintiff did wait with the defendant after the said notes became due, from a certain day to be named in the plea, to a definite period also to be named, and that the interest at six per cent. on said notes amounted to a sum certain to be specified, which sum he, the said defendant, paid to the said plaintiff; for, without this there can be no traverse of the fact. 2 Cowper's R. 671, Carlisle v. Keas; 6 Term R. 460, Grimwood v. Barnett. In pleading the performance of a condition or covenant, the party must not plead generally that he performed the covenant or condition, but must show, specifically, the time, place, and manner of performance. Stephen's Pleadings, p. 382, side paging; same page, 427, side paging; same 448. Comyn's Digest, Pleader (E. 36). 1 Saund. 28, n. (2.); 1 Term R. 40; 6 Johns. 63, 2, Saund. R. 137. 1 Chitty, 478. The pleas are not susceptible of any issue, and in fact, no issue material to the cause, is, or could be made to these pleas; the very object and intention of all pleadings and without which, no plea is good. Chitty's Pleadings, p. 474; 6 Johns. R. 63; Gould's Pleading, 357; 18 Johns. R. 28; Hallet v. Holms. See also, 1 Chitty's Pl p. 510; 1 Saunder's R. 28, note 3. A plea in bar of the plaintiff's action must be certain to a common intent, and direct, and positive in the facts set forth, stating them with all necessary certainty. Van Ness v. Hamilton, 19 Johns. R. 349; 2 Condensed U. S. R., 132, The U. S. v. Gurney. It is not a good plea for defendant to state, that he paid a sum certain, without averring it to be the sum due. The amendment did not affect the pleas. But the granting of this amendment was no error 1st section of 6th article of Practice at Law, p. 467. Atwood v. Gillespie, 4 Mo. R. 425; Wilkinson v. Blackwell, 4 Mo. R. 427; Rev. Code, page 459, § 20; Statute of 1825, p. 627; Singleton v. Mann, 3 Mo. R. 464; Bellissime v. McCoy, 1 Mo. R. 318; McCallister v. Mullanphy, 3 Mo. R. 38; Johnson v. White, 2 Mo. R. 223; 1 Mo. R. 589, Simonds v. Beauchamp; Crump v. Mead et al., 3 Mo. R., 233; 2 Condensed Reports S. C. U. S., 98, Young v. Breston; 5 Cond. Rep. 210, Tayloe v. T. & S. Sandiford. There is no error, and the whole case seems to have been decided according to the right and justice of the cause, and the judgment of the Circuit Court should, therefore, be affirmed.

TOMPKINS, J.

Lewis brought his action against Atwood in the Circuit Court of St. Louis county, where he obtained a judgment, to reverse whch Atwood appeals to this court. The action is founded on two notes, the one dated the 24th May, 1836, for $1023 33, payable two years after date, the other for the same sum, payable three years after date. The defendant pleaded three pleas: 1st, nil debet; 2d, that at the time he executed the said notes, and before the delivery thereof to the plaintiff, he, the said plaintiff, stipulated and agreed with the said defendant, by a written instrument of the same date with the said notes, of which profert is made, that if, at the time of the maturity of the said notes, it should not be convenient for the defendant to pay the same, the plaintiff would wait the convenience of the defendant to pay; in consideration of which, the defendant also, by said agreement, promised to pay the plaintiff at the rate of six per cent. per year upon the amount of the said notes, for such time as the said plaintiff should wait for the payment of the said notes after they should fall due, which interest the defendant avers he has paid; and that when the notes became due, it was not convenient for him to pay the same, &c. The third plea is the same as the first, except, that it is averred, that the agreement was entered into after the execution and delivery of the two notes. The plaintiff demurred to the second and third pleas; and on a subsequent day, he obtained leave to amend his pleadings, in the case, by craving oyer of the instrument of which profert was made. The agreement is, that whereas the said Atwood has executed his three promissory notes to the said Lewis at one, two, and three years, for the payment each of $1023 33; and whereas said Atwood has secured to said Lewis the payment of said notes, by mortgage on real estate, the said Lewis agrees that at the time of the said notes falling due, if it is not convenient for said Atwood immediately to pay the same, that he, the said Lewis, will wait the convenience of the said Atwood; and in consideration thereof, the said Atwood agrees to pay the said Lewis interest at the rate of six per centum, upon the amount of the...