Hartzell v. McClurg

• Decision Date: 17 March 1898
• Docket Number: 1889
• Citation: 74 N.W. 625,54 Neb. 313
• Parties: T. N. HARTZELL v. A. C. MCCLURG ET AL
• Court: Nebraska Supreme Court

74 N.W. 625

54 Neb. 313

T. N. HARTZELL v. A. C. MCCLURG ET AL

No. 1889

Supreme Court of Nebraska

March 17, 1898

ERROR from the district court of Buffalo county. Tried below before SINCLAIR, J. Affirmed.

AFFIRMED.

Dryden & Main, for plaintiff in error.

Calkins & Pratt, contra.

OPINION

RAGAN C.

T. N Hartzell has filed a petition in error in this court to review a judgment of the district court of Buffalo county recovered against him in favor of A. C. McClurg and others on a promissory note.

1. The first argument is that the petition does not state a cause of action. The petition alleges that the plaintiffs are partners doing business under the firm name of A. C. McClurg & Co. that on April 19, 1894, for a valuable consideration. Hartzell executed and delivered to plaintiffs his promissory note in writing, wherein and whereby he promised to pay to plaintiffs' order the sum of $ 150 September 1, 1894, with interest thereon from date until paid; that said note is wholly due and payable, and defendant wholly neglects to pay the same or any part thereof. Wherefore plaintiffs demand judgment against said defendant, etc. The argument that the petition does not state a cause of action is that it does not expressly aver what amount is due on the note; that any amount is due to the plaintiffs from the defendant on the note; that it does not expressly allege that the note is unpaid. We think, however, the petition states a cause of action. The averments of the petition sufficiently show the making of a contract and its breach. It is said by counsel for the plaintiff in error that the petition does not negative the possibility that the note might have been paid by some party other than the maker. This is true, but a petition does not need to negative such a possibility. If the note had been paid by the maker or any other person, that was affirmative matter of defense. (Ashland Land & Live Stock Co. v. May, 51 Neb. 474, 71 N.W. 67, and cases there cited.) But it is insisted that the petition is to be construed most strongly against the pleader. Assuming this argument to be correct the pleading is not to be given an unreasonable construction, and such a construction as requires it to negative the payment of the note sued upon by any person whomsoever. But the petition is not to be strictly construed, for section 121 of the Code of Civil Procedure requires the court in the construction of every pleading to give the averments thereof a liberal construction for the purpose of determining its effects and with a view to promoting substantial justice between the parties litigant. The contention of counsel that the petition does not state a cause of action because it does not expressly allege nonpayment is supported by Scroufe v. Clay, 71 Cal. 123, 11 P. 882, but we decline to follow that case.

2. This suit was originally brought before a justice of the peace and after McClurg and others had filed their petition in the district court Hartzell moved that court to strike the petition from the files for the reason that the plaintiffs in the district court were different from the plaintiffs named in the summons in the justice court. The overruling of this motion is the second argument made here. The court did not err in overruling this motion. The fact that the parties made plaintiffs in the district court were different from those named in the summons issued by the justice of the peace afforded no reason whatever for the...