County of Montgomery v. Auchley

• Decision Date: 16 May 1887
• Citation: 4 S.W. 425,92 Mo. 126
• Parties: MONTGOMERY CO. v. AUCHLEY and others.
• Court: Missouri Supreme Court

4 S.W. 425

92 Mo. 126

MONTGOMERY CO. v. AUCHLEY and others.

Supreme Court of Missouri.

May 16, 1887.

1. BONDS — ACTION — PLEADING.

In an action on a bond, or on any unsealed instrument which by statute imports a consideration, it is not necessary to set out the consideration.

2. SAME — CONSIDERATION — SUBSEQUENT SURETY.

Under the Missouri statute a bond to secure a loan of the school fund by a county court must contain an agreement for such additional security as may from time to time be ordered by the court; and, where a bond is signed by a surety as such additional security, it relates back to the date of the original execution of the bond, and no new consideration is required.

Error to Montgomery county.

J. M. Barker, for plaintiff in error. E. Rosenberger, for defendant in error.

BLACK, J.

This suit is based upon a bond executed by Hilterbrand, Bachman, and Gliser, dated November 25, 1868, by which the obligors promised to pay to the county, for the use of the school fund of a designated school township, $330 on or before the first January then next ensuing, with 10 per cent. interest. The bond contains the following additional stipulations: "And in case of default in the payment of the interest, or failure in the principal in this bond to give additional security when thereto lawfully required, then the principal and interest shall become due and payable forthwith, and all interest not punctually paid shall bear interest at the same rate as the principal." The petition sets out the bond both according to its tenor and legal effect. It is also alleged, among other things, that in 1877 the obligors were in default, and that they were lawfully required to give additional security; that in pursuance of the order, and for "other and divers good and valid considerations," the defendant Auchley, at the request of the said obligors, and on the twenty-eighth February, 1877, executed the bond to the plaintiff "by then signing the same under his hand and seal." It is also alleged that defendants paid the interest up to January 1, 1883, and that the bond is entitled to a credit of $30 for proceeds of sale of mortgaged real estate. The defendants Auchley and Bachman demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. From a judgment sustaining the demurrer, the plaintiff sued out this writ of error.

That the demurrer was improperly sustained as to the defendant Bachman is not controverted; but it is contended that it was properly sustained as to Auchley, because it appears from the petition that he signed the bond some eight years after it was first executed and delivered; that, when he signed the bond, the consideration had passed between the original parties; and that his contract arising from signing and sealing it was without consideration and of no validity.

1. Generally, in cases of simple contracts, the consideration should be formally and expressly pleaded. But this rule has no application to contracts under seal and negotiable instruments, for they import a consideration. 1 Chit. Pl. 262; Bliss, Code Pl. § 268. By force of our statute, (Rev. St. 1879, § 663,) non-negotiable instruments also import a consideration. Taylor v. Newman, 77 Mo. 257. This statute also applies to a large class of contracts in writing...