Burke v. M. E. Leming Lumber Company

• Decision Date: 29 November 1915
• Docket Number: 11
• Citation: 180 S.W. 499,121 Ark. 194
• Parties: BURKE v. M. E. LEMING LUMBER COMPANY
• Court: Arkansas Supreme Court

180 S.W. 499

121 Ark. 194

BURKE v. M. E. LEMING LUMBER COMPANY

No. 11

Supreme Court of Arkansas

November 29, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Judgment affirmed.

T. B Pryor and John H. Vaughn, for appellant.

Appellant admits signing the note, but he was subsequently released from liability thereon because of a contract, based upon a valuable consideration, between this appellant, L. S. Joseph and appellee. This constituted a novation and appellant was thereby discharged from liability. 22 P. 673; 35 S.W. 444; 37 S.W. 1019; 59 Ind. 508; 3 Ark. 216; Chitty on Contracts 581; 24 Ark. 356; 61 Ala. 155; 33 Ill.App. 534; 104 Ind. 180; 36 Tex. 76.

When the court treated the motion of plaintiff as a demurrer to the answer, it necessarily follows that the material matters of the answer were admitted to be true. 102 Ark. 280.

Read & McDonough, for appellee.

The defendant should have set out fully the consideration upon which the release was made. 34 Cyc. 1095. It must be in writing and for a consideration. 31 Ark. 728; 14 Ind. 523; 12 Ind. 46; 99 Ky. 170; 104 Ind. 180.

The answer stated a mere conclusion of law and was therefore insufficient. 62 Texas 143; 31 Ark. 728; Story's Eq Plead., sec. 797; 1 Dan. Ch. Prac. 669.

OPINION

MCCULLOCH, C. J.

Appellee sued appellant, M. C. Burke, on a promissory note in the following form:

"$ 1,200.00.

St. Louis, Mo., Sept. 23, 1913.

February 2, 1914, after date, we promise to pay to the order of M. E. Leming Lumber Co., One Thousand, Two Hundred and no/100 Dollars, with interest at the rate of 8 per cent per annum from date until paid, for value received, negotiable and payable without defalcation or discount, payable

Burke & Joseph,

By M. C. Burke."

Appellant answered, but the court held the answer to be insufficient and rendered judgment for the amount of the note. The only contention on the part of counsel for the appellant is that the court erred in holding insufficient the second paragraph of the answer, which reads as follows:

"2. Admits that the note set out in the complaint herein, was executed by the firm of Burke & Joseph on September 23, 1913 as alleged; admits that the said note was endorsed by M. C. Burke and L. S. Joseph, and delivered to the plaintiff for a valuable consideration. Defendant, further answering, states that after the execution of said note that the defendant, L. S. Joseph, who had been for a number of years having business transactions with the plaintiff, and who was well known to the plaintiff, entered into a contract with the plaintiff by the terms of which it was agreed and understood, between the said L. S. Joseph, defendant, and the plaintiff and this defendant, that the said L. S. Joseph was to and did assume the payment of the note sued upon herein; that under the terms of said contract, which was based upon a valuable consideration, the said plaintiff agreed to release, and did release, this defendant from all liability, either as maker or endorser of said note, and it was mutually agreed and understood that the plaintiff would look to the defendant, L. S. Joseph, for the same; that the defendant, L. S. Joseph, departed this life...