Baldridge v. Ryan

• Decision Date: 07 April 1924
• Docket Number: No. 15017.,15017.
• Citation: 260 S.W. 536
• Parties: BALDRIDGE v. RYAN
• Court: Missouri Court of Appeals

260 S.W. 536

BALDRIDGE v. RYAN

No. 15017.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Sullivan County; J. E. Montgomery, Judge.

"Not to be officially published."

Action by Ralph A. Baldridge against W, J. Ryan. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

P. M. Marr, of Milan, for appellant.

Alpha L. Burns, of Milan, for respondent.

ARNOLD, J.

This is an action by the alleged security on a promissory note to recover the amount of unpaid balance thereon, which said alleged security was required to pay in liquidation of the same.

The facts disclosed by the record are that on April 10, 1920, defendant executed his promissory note with plaintiff as comaker, for $470 due in five months from date, to one George F. McCormick, with interest at 8 per cent. per annum compounded. On January 27, 1921, the said note was indorsed by the payee therein to the Milan State Bank which said bank became the owner and holder thereof for value. After the maturity of said note and on April 30, 1923, plaintiff was required to and did pay the balance, due thereon, with interest amounting to $513.45.

The petition alleges the facts as above stated, and charges that said sum and no part thereof has been paid to plaintiff. A copy of said note with the indorsements thereon is set out in the petition, as follows:

                "$470.00.         Milan, Mo., April 10, 1920
                

"Five months (Sept.) after date for value received, we or either of us, as principal, promise to pay to George F. McCormick or order, four hundred and seventy dollars, with interest from date at the rate of 8 per cent. per annum.

"Such interest to be due and payable annually; but if not so paid, the legal holder hereof, at his election, may waive any or more of such annual interest payments, and in the event of such waiver the same shall become as principal and bear the same rate of interest. Both interest and principal payable at the Milan Bank, Milan, Mo.

In signing this note we waive notice of protest or extension of time. If the collection of this note is enforced by law, we promise to pay 8 per cent. on the principal due thereon, as ascertained and liquidated damages for attorney's fees in collecting the same.

                                     "W. J. Ryan
                                     "Ralph A. Baldridge
                "[Stamp—W. J. R., 4-10-20.]"
                

There is written on the back of the note the following:

"George F. McCormick. Credit $65.00 cash by W. J. Ryan, Feb. 4, 1921."

The prayer of the petition is as follows:

"Wherefore plaintiff prays judgment against the defendant for the sum of the amount paid by him on said note, together with interest thereon at the rate of 10 per cent. per annum, from the said 30th day of April, 1923, the date of said payment, and for costs."

Defendant filed a demurrer to the petition upon the grounds that (1) the petition on its face fails to state a cause of action; (2) that defendant had a good defense to said note against the original payee, and that payment was made by plaintiff voluntarily and without defendant's consent, and that plaintiff knew of defense, and that defendant had a good and perfect defense to said note if the same had been left in the hands of the payee; and (3) because by said petition plaintiff is exacting usury and an unlawful charge of interest; (4) because the petition shows on its face that compound interest is charged and exacted from defendant.

The demurrer was sustained by the court, and judgment was entered for defendant. The order sustaining the demurrer is as follows:

"Now on this 18th day of October, 1923, this cause comes on for determination upon the demurrer heretofore filed herein. Said demurrer is taken up, and, being seen, heard, and understood, is by order and judgment of the court sustained, to which ruling of the court the plaintiff at the time excepted and still excepts. It is therefore considered, ordered, and adjudged by the court that this plaintiff take nothing by his petition herein, and that the defendant be discharged and go hence without day, and have and recover of and from said plaintiff his costs in this behalf expended and have hereof execution."

From this order of the court, plaintiff appeals.

As an assignment of error the charge is made that the court erred in sustaining the demurrer to the petition. It is the established rule that in the consideration of a demurrer the matters charged in the petition must be considered as true. Citations are unnecessary.

Defendant has filed no brief in the case, and our review is necessarily confined to the record and the arguments and citations presented by plaintiff and the application of the law as it exists to...