Jaccard v. Anderson

• Decision Date: 31 March 1862
• Citation: 32 Mo. 188
• Parties: EUGENE JACCARD, Respondent, v. WM. C. ANDERSON, JR., Appellant.
• Court: Missouri Supreme Court

32 Mo. 188

EUGENE JACCARD, Respondent,

v.WM. C. ANDERSON, JR., Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

Gardner and Cox, for appellants.

I. The petition is fatally defective.

a. It does not show the note declared on to be negotiable by the law of this state. (R. C. 1855, p. 295, § 15.) It does not set out the words which give the note negotiability. b. It contains no averment of demand and refusal, or of facts which excuse the laches of the holder. The averment that said note was not protested at defendant's instance and request, he waiving protest, is insufficient. Presentment and demand and protest are distinct things in determining the sufficiency of a pleading.

The petition, therefore, does not set forth facts to constitute a cause of action, and no valid judgment can be pronounced upon it. (Ivory v. Carlin, 30 Mo. 142; Weaver v. Beard, 21 Mo. 155; Maloney v. Boernstein, 30 Mo. 144; Andrews v. Lynch, 27 Mo. 167; Anderson v. Gill, 15 Ark. 9.)

A. J. P. Garesché, for respondent.

I. The petition is sufficient. It shows that the note was not protested at defendant's instance and request, he waiving protest. (R. C. 1855, p. 1329, § 3; p. 1236, § 34; p. 1239, § 39.) The word protest means taking such steps as to charge the endorser. (Coddington v. Davis, 3 Denio, 25; s. c. 610; Beale v. Peck, 12 Barb. 250; Cook v. Litchfield, 5 Sand., N. Y., 341; 10 Barr., Penn., 103.)

DRYDEN, Judge, delivered the opinion of the court.

The plaintiffs, as the last endorsers of a promissory note, sue the defendant, as first endorser. Their petition is as follows, viz:

“Eugene Jaccard, Augustus Mermor and D. Constant Jaccard, plaintiffs, v. William C. Anderson, Jr., defendant. In St. Louis Circuit Court, St. Louis county.

Plaintiffs, by Alex. J. P. Garesché, their attorney, state that they are partners, associated together as E. Jaccard & Co.; that Washington King, by his negotiable note herewith filed, dated April 16th, 1856, promised to pay to defendant, or his order, one thousand dollars, one year after date; that defendant assigned by endorsement and delivered said note to E. H. Bussell, and said E. H. Bussell assigned by endorsement and delivered same to plaintiffs. Plaintiffs further state that said note was not protested at defendant's instance and request, he waiving protest; that no part of said note has been paid. They further ask judgment for said sum of one thousand dollars, interest, and costs.

ALEX. J. P. GARESCHÉ,

Attorney for Plaintiffs.”

The defendant answered, and a trial of the case was had, and a verdict and judgment were rendered for the plaintiffs. Several exceptions were taken in the progress of the trial, which it will be unnecessary for us to notice. In due time the defendant moved in arrest of the judgment because of the insufficiency of the petition, and the motion being overruled, he excepted and appealed to this court.

The petition is defective in not stating facts sufficient to constitute a cause of action. In order to render an assignor liable to the assignee it must appear by the petition, either that the note assigned is negotiable, or if not negotiable, that the maker was insolvent or non-resident of the state; or that the assignee, in the diligent prosecution of a suit against the maker, had been unsuccessful in making the debt. It does not appear by any averment of fact in this case that the note assigned was a negotiable instrument, nor are such facts shown as are necessary to impose a liability upon the defendant as assignor...