Gage v. Roberts

• Citation: 11 N.W. 306,12 Neb. 276
• Parties: A. R. GAGE, PLAINTIFF IN ERROR, v. JOHN M. ROBERTS, DEFENDANT IN ERROR
• Decision Date: 04 January 1882
• Court: Supreme Court of Nebraska

11 N.W. 306

12 Neb. 276

A. R. GAGE, PLAINTIFF IN ERROR, v. JOHN M. ROBERTS, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 4, 1882

ERROR to the district court for Harlan county. Tried below before GASLIN, J.

REVERSED AND REMANDED.

J. H Lucas, for plaintiff in error.

John Dawson, for defendant in error.

OPINION

MAXWELL, J.

In September, 1880, the defendant filed the following petition in the district court of Harlan county:

"John M. Roberts v. A. R. Gage. The plaintiff states that this action is founded upon a promissory note, of which the following is a copy with the credits thereon:

REPUBLICAN CITY, MAY 10, 1878.

Twenty months after date I promise to pay to the order of John M Roberts, six hundred and thirty-four dollars, (634.00), for value received, with ten per cent. interest thereon from date, and if the interest thereon is not promptly paid annually, the same shall become a part of the principal and bear the same rate of interest.

A R. GAGE.

That no part of which has been paid except the sum of three hundred and twenty-six dollars and forty cents.

That there is now due plaintiff from defendant the sum of four hundred and thirty-eight dollars, for which he claims judgment with interest from the 10th day of May, 1878, and the costs of this action."

To this petition Gage filed a general demurrer, upon the ground that the facts stated in the petition did not constitute a cause of action against him. The demurrer was overruled and judgment rendered in favor of Roberts for the sum of $ 542.50 and costs.

The error assigned in this court is that the court erred in overruling the demurrer. The objections seem to be that a copy of the note is set out as a part of the petition, and the failure to allege that Gage made and delivered the note to Roberts.

Judge Swan in his valuable work on Pleading and Precedents, pages 199, 200, says:

"Upon a note for the payment of specific articles, or upon a bond conditioned to perform some act, or upon a contract of guaranty, in these and the like cases, where the instrument relates solely to the facts constituting the cause of action it is not only proper, but the best mode, to allege the making of the instrument, and then set it out in full and allege a breach. Again, the stipulation or covenant upon which the breach is assigned, is frequently either qualified or enlarged, or the right of the party complaining of its breach, is dependent upon his performance of all other stipulations of the agreement. In such cases, if the agreement is not copied into the pleading, it is, in general, necessary to recite substantially the whole agreement, and aver, generally or specifically performance, or an offer to perform;...