County of Montgomery v. Auchley

• Decision Date: 01 April 1887
• Citation: 4 S.W. 425,92 Mo. 127
• Parties: The County of Montgomery, Plaintiff in Error, v. Auchley et al
• Court: Missouri Supreme Court

4 S.W. 425

92 Mo. 127

The County of Montgomery, Plaintiff in Error, v. Auchley et al

Supreme Court of Missouri

April 1, 1887

Error to Montgomery Circuit Court. -- Hon. Elijah Robinson, Judge.

Reversed.

John M Barker and W. G. Lovelace for plaintiff in error.

(1) The trial court committed error in sustaining the general demurrer. The demurrer ought to be special unless the objection is fatal to plaintiff's case, as well as to the petition. R. S., secs. 3515, 3516; Almett v. Leper, 48 Mo. 319; McClurg v. Phillips, 49 Mo. 315; Morgan v. Bouse, 53 Mo. 219. (2) Auchley was liable on the bond, as it was agreed at the time of making the contract that Auchley was to be obtained as additional security. The statutes in force were a part of the contract. (3) Bachman was not released because he consented for the additional security to be taken. 2 Daniel on Neg. Notes, sec 1321. (4) The instrument sued on was a sealed one, and it imported a consideration. 1 Daniel on Neg. Inst., sec. 160.

Emil Rosenberger for defendants in error.

(1) The trial court committed no error in sustaining the general demurrer. A general demurrer is admissible when the petition fails to state a cause of action. Morgan v. Bouse, 53 Mo. 219; Bank of Mo. v. Haden, 35 Mo. 359; Jordan v. Railroad, 61 Mo. 52. It is too late to raise the question in this court, that the demurrer was not specific. Plaintiff should have called the lower court's attention to this in his motion for a new trial. (2) The petition states no cause of action against Auchley. The petition shows that Auchley signed the bond or note sued on more than eight years after the note was executed and delivered, and the consideration passed between the payee and the original makers. One who becomes a party to a note after it has once been delivered, and the consideration had passed between the original parties, incurs no liability, unless there is some new consideration and a re-delivery of the note. McMahon v. Geiger, 73 Mo. 145; Williams v Williams, 67 Mo. 662. And the fact that he signs in the presence of the holder does not amount to a re-delivery. Ibid. Admitting that it was in the bargain, when Hildebrandt borrowed the money, that he should give additional security when required by the county court, this does not show that there was a consideration for the promise of Auchley. He affixed his name to the note more than eight years after it was made and delivered, and the consideration passed between the original promisors and the plaintiff as a complete contract. Pfeiffer v. Kingsland, 25 Mo. 66; McPherson v. Meek, 30 Mo. 345; Green v. Sheperd, 5 Allen, 570.

OPINION

Black, J.

This suit is based upon a bond executed by Hildebrandt, 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, three hundred and thirty dollars, on or before the first of January then next ensuing, with ten 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 of 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 thirty dollars 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 Chitty's Plead. 262; Bliss on Code Plead., sec. 268. By force of our statute (R. S., sec. 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 which do not come...