Cahn v. Miller
| Decision Date | 29 June 1937 |
| Docket Number | No. 24072.,24072. |
| Citation | 106 S.W.2d 495 |
| Parties | CAHN v. MILLER. |
| Court | Missouri Court of Appeals |
Samuel Scott Nowlin and Elliott M. Hughes, both of Montgomery City, for appellant.
Claude R. Ball, of Montgomery City, for respondent.
This is a suit in nine counts on nine checks signed by defendant, payable to plaintiff, drawn on the Montgomery County Bank. Plaintiff recovered on each count and defendant in due course appeals.
Each count of the petition is similar in every respect excepting the date and the amount. Each count alleges that on a certain day defendant was indebted to plaintiff in a stated sum, and that on said date, in payment and settlement of said sum then due to plaintiff, defendant gave plaintiff his check drawn on the Montgomery County Bank for said sum of money, which check is herewith filed and marked as an exhibit.
The defendant filed a demurrer to each of the nine counts, and each demurrer was overruled. Thereupon defendant filed an unverified general denial to each count.
At the trial of the case plaintiff offered in evidence each of the nine checks, which were admitted by the court over the objection of the defendant that said checks were wholly irrelevant until an indebtedness had been shown. Defendant requested a peremptory instruction that the jury return a verdict for defendant on each of the counts, which instruction was overruled. Defendant stood upon its demurrer and the court thereupon directed a verdict for plaintiff for the amount sued upon in each count of plaintiff's petition, and from the resulting judgment defendant in due course appeals.
Appellant contends that, if plaintiff's petition is deemed to state a cause of action on a check, it is fatally defective for the reason that it contains a defective statement of consideration.
Under section 2653, Rev.St. of Mo. 1929 (Mo.St.Ann. § 2653, p. 656), a check or note is deemed prima facie to have been issued for a valuable consideration; and under section 2958, Rev.St. of Mo. 1929 (Mo.St.Ann. § 2958, p. 1824), it is not incumbent upon plaintiff to prove consideration. Where, however, plaintiff does allege a specific consideration it must be "a good consideration; and if an insufficient consideration be pleaded, it may be taken advantage of by demurrer." Glasscock v. Glasscock, 66 Mo. 627.
An examination of plaintiff's petition discloses that in each count it alleges defendant was indebted to plaintiff in a certain sum, for which sum defendant gave plaintiff his check drawn on the Montgomery County Bank, which check was filed with the petition as an exhibit. The allegation of indebtedness is a mere conclusion and not an allegation of fact, and, therefore, plaintiff's petition does not fall within the rule announced in the Glasscock Case, nor those cases in which it is held that, where a specific consideration is alleged for the execution of a check or note, such specific consideration must be proven. Therefore in light of section 2653, supra, the checks sued upon herein must be deemed prima facie to have been issued for a valuable consideration. Mills Organization v. Bell, 225 Mo.App. 685, 37 S.W.(2d) 680. And failure or want of consideration for the check would be an affirmative defense with the burden of proof in the instant case upon the defendant, the party who would assert it. Section 2653, supra; Thompson v. McCune, 333 Mo. 758, 63 S.W.(2d) 41; Seman v. Illgenfritz, 223 Mo.App. 546, 15 S.W.(2d) 912; Farmers' Bank of Billings v. Schmidt, 223 Mo.App. 1098, 25 S.W.(2d) 525; C. I. T. Corporation v. Byrnes (Mo.App.) 38 S.W. (2d) 750. The point is ruled against appellant.
Appellant contends that plaintiff failed to prove presentment of the checks for payment, and that, therefore, plaintiff must be held to have failed to make out a case. This point is without merit.
Section 2813, Rev.St. of Mo.1929 (Mo. St.Ann. § 2813, p. 721), provides that a check is a bill of exchange drawn on a bank payable on demand, and that, except as otherwise provided, the provisions of our Negotiable Instrument Law applicable to a bill of exchange payable on demand shall apply, and while section 2814, Rev. St. of Mo.1929 (Mo.St.Ann. § 2814, p. 722), provides that a check must be presented for payment within a reasonable time after its issue, the section further provides that the drawer, where the check has not been presented for payment within a reasonable time, will be discharged from liability thereon...
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