Campbell v. Worman

• Decision Date: 26 October 1894
• Docket Number: No. 8633.,8633.
• Parties: D. C. CAMPBELL <I>et al.</I> <I>vs.</I> J. A. WORMAN.
• Court: Minnesota Supreme Court

Page 561

58 Minn. 561

D. C. CAMPBELL et al. vs. J. A. WORMAN.

No. 8633.

Supreme Court of Minnesota.

Argued October 16, 1894.

Modified October 26, 1894.

Appeal by defendant, J. A. Worman, from a judgment of the District Court of Hennepin County entered by the Clerk on default on August 17, 1893, for $3,446 damages and $9.37 costs.

The plaintiffs, D. C. Campbell, J. A. Campbell and G. P. Campbell, are partners doing banking business at Centerville, Iowa, under the name Campbell Banking Company. On March 15, 1893, the defendant gave them his note of which the following is a copy:

                $3,100.                   Centerville, Iowa, March 15, 1893
                

Ninety ______ after date, for value received I promise to pay to the order of the Campbell Banking Company in Centerville, Iowa, the sum of thirty one hundred dollars, with interest after maturity at the rate of seven per cent per annum, and if not paid by maturity I further agree to pay ten per cent attorney's fees for collecting the same.

                                                                 J. A. Worman
                

Plaintiffs brought suit on this instrument, but omitted to state in the complaint when it was due or payable. They alleged that demand had been duly made, but defendant had not paid the note or any part of it and that plaintiffs had been compelled to place the same in the hands of attorneys for the purpose of suit and collection and have agreed to pay said attorneys for their services ten per cent on the face of the note and they demanded judgment for $3,100 and interest from June 16, 1893, and for $310 and for costs and disbursements.

The summons and a copy of this complaint were served on defendant personally on July 22, 1893. He did not appear or answer and on August 17, 1893, judgment was entered by the clerk for the amounts claimed without any proofs being made or application to the court. Thereafter on the same day defendant appealed.

Savage & Purdy, for appellant.

Chamberlain & Anderson, for respondent.

MITCHELL, J.

Upon appeal from a judgment entered by the clerk of the court upon default of answer, the defendant makes the point that the complaint does not state a cause of action. We shall consider the appeal on the merits, for the reason that the plaintiffs do not raise the point that application should have been first made to the court in which the judgment was entered; but we do not wish the case to be considered a precedent for entertaining such appeals. See Bank of Commerce v. Smith, 57 Minn. 374 (59 N. W. 311.) The complaint is no credit to its author; but as against objections raised for the first time after judgment, when every reasonable intendment in favor of the pleading must be indulged in, we think it must be held that it states a cause of action for the amount of the principal and interest of the instrument sued on.

The complaint must be construed as setting up an instrument payable presently, or at least on demand, no time of payment being specified. Libby v. Mikelborg, 28 Minn. 38, (8 N. W. 903;) Chamberlain v. Tiner, 31 Minn. 371, (18 N. W. 97.)

An agreement or promise to pay by the party who executed the instrument is also sufficiently alleged. And even assuming that the words "for value received" are to be construed as the allegation of the pleader, and not the language of the instrument, we think it should be held a sufficient allegation of a consideration for...