Humphries v. Spafford

• Decision Date: 12 October 1883
• Citation: 14 Neb. 488,16 N.W. 911
• Parties: HUMPHRIES v. SPAFFORD.
• Court: Nebraska Supreme Court

14 Neb. 488

16 N.W. 911

HUMPHRIES

v.SPAFFORD.

Supreme Court of Nebraska.

Filed October 12, 1883.

Appeal from Lancaster county.

Wales Frank Severance, for plaintiff.

J. S. Gregory, for defendant.

LAKE, C. J.

It is quite possible that the petition in the court below failed to state correctly the plaintiff's case. Judging from the brief of her counsel, wherein he sets forth her claim, we are sure it did not. However, if it did, then the judgment gave her all she was entitled to have. The action was brought for the foreclosure of a mortgage given to secure the payment of two promissory notes, bearing date of January 2, 1882, each, calling for the payment of $150 in one and two years, respectively, with interest at 10 per centum, payable semi-annually. Each note had a clause to the effect that if any of the interest remained unpaid for 10 days after it became due, the holder might “elect to consider the whole note due,” and proceed at once to collect it. After giving the terms of the notes and mortgage, the petition states “that defendants have failed to comply with the conditions of said notes by neglecting to pay the first note of $150, and six months' interest thereon, amountto $7.50, on January 2, 1883, when the same became due and payable, and also in failing to pay the sum of $7.50 interest due on the note of $150 on January 2, 1883, due by its terms; that the plaintiff elects to deem the whole of said note, not yet due by its terms, due, because of failure to pay said interest; that no proceedings at law have been had for the recovery of the amount of said notes; and that there is due and unpaid thereon the sum of $165, and interest thereon from January 2, 1882, at 10 per cent. per annum;” and for this amount judgment was prayed and rendered.

Pleadings must be construed reasonably. It is a reasonable presumption, and one which has become an established rule of construction, that a pleader will state his case quite as favorably for himself as the facts will justify. B. & M. R. R. Co. v. Lancaster Co. 4 Neb. 307; School-dist. No. 16 v. School-dist. No. 9, 12 Neb. 241; [S. C. 11 N. W. REP. 311.] The rule of the Code that pleadings shall be construed liberally, does not dispense with the averment of any material fact. Burr v. Boyer, 2 Neb. 265. Thus tested, the petition would not support a judgment for more than was given.

It is not alleged that no payment had been made on the notes, but simply that none were made at the particular...