Glasscock v. Glasscock

• Decision Date: 31 October 1877
• Parties: GLASSCOCK, Slaintiff in Error v. GLASSCOCK.
• Court: Missouri Supreme Court

66 Mo. 627

GLASSCOCK, Slaintiff in Error

v.GLASSCOCK.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Ralls Circuit Court.--HON. JOHN T. REDD, Judge.

William Christian and B. G. Barrow for plaintiff in error.

1. The agreement to pay compound interest is predicated upon a forbearance to sue upon a valid claim, which is always a sufficient consideration to support a promise. Chitty on Cont., (11th Am. Ed.) Vol. 1, pp. 35, 36; Stewart v. Petree, 14 Am. Rep. 332.

2. Where no special time of forbearance is fixed by agreement, the law will imply a reasonable time to be meant by the parties, Chitty on Cont., pp. 40, 41; and the question o reasonable time is to be determined from the circumstances of the parties at the time the contract is made, Chitty on Cont., p. 1062; being a question of law for the courts, after hearing the evidence, it need not be averred that plaintiff waited a reasonable time before bringing suit.

3. The contract for compound interest, which is nothing more than interest upon interest, is not in contravention of law. 1 Wag. Stat., p. 783, § 6; Wilcox v. Howland, 23 Pick. 167; Gen. Stat. of 1855, p. 889, §§ 1, 2.

W. H. Hatch for defendant in error.

1. There is no averment of a forbearance, either absolutely or for a certain time, or for a reasonable time; and no averment that, in consideration of the agreement, plaintiff did forbear to institute his suit from the date of the contract to any particular day or time, or for a reasonable time.

2. Before the revised statutes of 1855, parties in this State could not prospectively agree that interest should bear interest, Gunn v. Head, 21 Mo. 431; and the contract alleged was entered into November, 1865, and comes within the operation of the 6th Sec. Chap. 85, R. S. 1855, Vol. 1, p. 891, and the words of the statute must be used, and other expressions will not answer. Bailey v. Smock, 61 Mo. 213; Thomson v. Roatcap, 27 Mo. 283; Stoner v. Evans, 38 Mo. 461.

HOUGH, J.

The only question presented by the record in this cause, is the sufficiency of the following petition: “Plaintiff states that on the 13th day of November, 1860, the defendant (with one James M. Mills, who is not sued in this cause,) executed and delivered to plaintiff their promissory note, by which they promised, for value received, to pay plaintiff, thirty days after the date thereof, the sum of four thousand eight hundred and eighty-two and 56-100 dollars, with interest thereon from date, at the rate of ten per cent. per annum. Plaintiff further states that on or about the 7th day of November, 1865, after said note became due, and was still unpaid, he demanded payment thereof from defendant and said Mills, or that they would agree to pay to plaintiff compound interest on the same from the date thereof, to-wit: November 13th, 1860, and that on said 7th day of November, 1865, the defendant and said Mills, in consideration of the plaintiff giving them further time in which to pay said note, and that the plaintiff would not then enforce the payment of the same, promised and agreed in writing, which is herewith filed, to pay to the plaintiff compound interest on said note from the date thereof, to-wit: November 13th, 1860; that plaintiff accepted said promise, and did give the defendant and said Mills further time in which to pay the same, and did then forbear to enforce the payment of the same. Plaintiff avers and charges that the defendant has failed to keep and perform his part of said agreement in this, that he has failed and refused to pay to the plaintiff compound interest on said note, by reason whereof plaintiff says he is damaged in the sum of eight hundred dollars, for which he asks judgment.” The defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained and final judgment entered thereon for the defendant, and the plaintiff has brought the case here by writ of error.

1. PLEADING CONSIDERATION OF A NOTE.

The chief objection made to the foregoing petition, and the only one which it will be necessary to notice is, that it contains no sufficient averment of a consideration to support the alleged promise. It was wholly unnecessary to aver any consideration. The 6th section of chapter 34, Wag. Stat., in relation to contracts and promises, provides that all instruments in writing, whereby any person shall promise to pay to another any sum of money or property therein mentioned, shall import a consideration, and be due and payable as therein specified. The pleader, however, having undertaken to set forth the consideration of the promise declared upon, must plead a good consideration; and if an insufficient consideration be pleaded, it may be taken advantage of by demurrer.

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