Maupin v. Smith
| Decision Date | 31 May 1842 |
| Parties | MAUPIN & JAMESON, IMPLEADED WITH BOON, v. SMITH. |
| Court | Missouri Supreme Court |
ERROR TO FRANKLIN CIRCUIT COURT.
POLK, for Defendant.
William Smith, as assignee of James Norfolk, brought suit against Maupin, Jameson, &c., on the following promissory note:
Six months after date we and each of us promise to pay James H. Norfolk, or order, $1,286.10 without defalcation, for value received.
SYDNEY S. BOON.
The note was assigned to Smith, the plaintiff. The defendants, amongst other things, set up as defense to the action, a total failure of consideration, and a set-off due by the payee to one of the defendants before the assignment. Demurrers were entered to the pleas containing these several defenses, and the demurrers sustained. Judgment was rendered against the defendants below.
The note sued on could not be negotiated like an inland bill of exchange, within the meaning of the 6th section of the act concerning Bonds and Notes, for want of the words negotiable and payable. See 6 Mo. R. 266, Austin and Haines v. Blue.(a) According, however, to the case of Waddle v. Collins, 4 Mo. R. 452, the note described in the petition is within the fourth section of the act above mentioned, it being payable without defalcation, consequently the makers are not allowed any set-off against the assignor. But the third section of the same act declares that the defense of the maker shall not be changed by the assignment, but he may make the same defense against the note in the hands of the assignee, that he might have made against the assignor. The defense of a total failure of consideration or want of consideration, set up by the maker, was allowable under this section, and the court erred in sustaining a demurrer to the plea in which such defense was contained.
There was no error in the court in refusing to quash the writ on account of the variance between it and the declaration, and in permitting an amendment. Jones v. Cox, 7 Mo. R. 174. Judgment reversed.
(a). See note to this case.
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Cutler v. Cook
...were first construed they were held by Judges McGirk and Scott to apply only to non-negotiable paper. Collins v. Waddle, 4 Mo. 452; Maupin v. Smith, 7 Mo. 402. These decisions were rendered in 1836 and 1842. In 1847, Judge Wash held in Baker v. Brown, 10 Mo. 396, that the statute applied to......
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