Elliot v. Roche

• Decision Date: 21 May 1896
• Docket Number: 9981--(133)
• Citation: 67 N.W. 539,64 Minn. 482
• Parties: EMILY B. ELLIOT v. SUSAN ROCHE and Others
• Court: Minnesota Supreme Court

67 N.W. 539

64 Minn. 482

EMILY B. ELLIOT v. SUSAN ROCHE and Others

Nos. 9981--(133)

Supreme Court of Minnesota

May 21, 1896

Appeal by defendants from an order of the district court for Ramsey county, Egan, J., overruling a demurrer to the complaint. Affirmed.

Order affirmed.

Moritz Heim, for appellants.

Stevens O'Brien, Cole & Albrecht, for respondent.

OPINION

BUCK, J.

This action is brought upon a promissory note dated October 1 1892, which is attached to, and marked "Exhibit A," and made a part of the complaint, the principal payable October 1, 1897, and drawing interest at the rate of 7 per cent. per annum thereon, payable semiannually, according to the terms of 10 interest coupon notes, executed simultaneously with the note, which also contained a provision that if any installment of interest should not be paid when due, or within 15 days thereafter, the said principal sum, with all interest due or accrued thereon should become due and payable at once, without notice, at the option of the legal holder of the note.

The payee named in the note is the St. Paul Title Insurance & Trust Company, and it duly sold, assigned, and transferred the note to the plaintiff, who, in her complaint, alleges that she is the lawful owner and holder thereof; that installment of interest represented by coupon No. 5 became due April 1, 1895, and was not paid, although duly demanded; that by reason of said default in the payment of said interest, and in accordance with the conditions of said note, the whole principal sum evidenced thereby, with the interest accrued thereon, has become due and payable, and this plaintiff has elected to and does declare the same to be now due and payable, and that no part of the same has ever been paid. The defendants interposed a demurrer to the complaint upon the ground that the complaint does not state a cause of action, and assign as errors: (1) That there is no allegation in the complaint that the defendants, for value received, promised to pay to the order of the plaintiff's assignor the sum therein stated (2) that there is no allegation in the complaint that the said note contains a provision authorizing the plaintiff to declare the whole sum due upon the nonpayment of interest; (3) that there is no allegation in the complaint of a time when the promissory note became due; (4) that the court erred in holding that the recitals in "Exhibit A," attached to the complaint, took the place of the necessary allegations of a cause of...