Bick v. Clark

• Decision Date: 29 December 1908
• Citation: 134 Mo. App. 544,114 S.W. 1144
• Parties: BICK v. CLARK et al.
• Court: Missouri Court of Appeals

114 S.W. 1144

134 Mo. App. 544

BICK v. CLARK et al.

St. Louis Court of Appeals. Missouri.

December 29, 1908.

1. ASSUMPSIT, ACTION OF (§ 19) — PLEADING UNDER THE CODE — PROMISE TO PAY.

It is sufficient under the Code to state facts in an action in assumpsit from which the promise to pay would be implied.

2. BILLS AND NOTES (§ 28) — DEFINITION OF "PROMISSORY NOTE."

A "promissory note" is defined to be an unconditional promise in writing for the payment of a certain sum of money absolutely.

For other definitions, see Words and Phrases, vol. 6, pp. 5676-5681; vol. 8, p. 7767.]

3. BILLS AND NOTES (§ 462) — PLEADING PROMISE TO PAY.

An allegation that a promissory note was executed and delivered to persons named implies a promise to pay.

4. BILLS AND NOTES (§ 467) — PLEADING DESIGNATING PAYEE.

Where it is averred that a promissory note was executed to a person named, it sufficiently designates him as the payee to give him, prima facie, the right to transfer it by assignment.

5. BILLS AND NOTES (§ 462) — PLEADING PROMISE TO PAY.

Though a petition does not describe a note sued on as containing a promise to pay, the description thereof as a promissory note implies that it contains such a promise.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by J. J. Bick against J. N. Clark and others. There was a judgment for defendants on sustaining a demurrer to the petition, and plaintiff appeals. Reversed.

T. P. Bashaw, for appellant. Ragland & McAllister, for respondents.

GOODE, J.

The question on this appeal is whether the following petition is good; a demurrer having been sustained to it and final judgment entered on the demurrer: "Plaintiff for his second amended petition, by leave of court first had, for cause of action against defendants states: That defendants executed signed, and delivered their promissory negotiable note for value received to R. B. Palmer & Sons, for $57, dated November 21, 1893, due in one year after date with 8 per cent. interest from date to compound annually, which note was assigned and transferred by R. B. Palmer & Sons for value received to J. J. Bick, this plaintiff, on December 9, 1902, and is attached with the original petition in this suit marked `Exhibit A' and made a part of this procedure; that the principal and interest of said note is now long since past due, owing, and unpaid, with damages aggregating $250, for which amount plaintiff asks and prays for judgment against defendants with 8...