Muldrow v. Tappan
| Decision Date | 30 June 1840 |
| Citation | 6 Mo. 276 |
| Parties | MULDROW v. TAPPAN AND OTHERS |
| Court | Missouri Supreme Court |
WRIGHT and WELLS, for Plaintiff in Error. 1st. The declaration nowhere avers that there was an undertaking or promise, either express or implied, by the defendant to the plaintiff; the declaration was, therefore, bad, and the judgment should have been arrested. See 1 Chitty, 329 and note; 2 Call, 39; 3 Mum. 566; 2 Wash. 187; 2 Tucker, 145. 2d. The evidence showed a total failure of consideration; the verdict should, therefore, have been for the defendant; the verdict being wrong there should have been a new trial granted.
CAMPBELL and GLOVER, for Defendants in Error. 1st. The promise is sufficiently charged in plaintiff's declaration. See Laws on Pleading in Assumpsit, 30-1; ibid. 68, note 2; ibid. 331; 1 Chitty's Pl. 154, title Bonds and Notes, § 1; 4 Mo. R. 33. 2d. The averment of performance, or readiness to perform, was not necessary, because the plaintiffs were not by the terms of the contract to do anything till the payment of the money. 2 Tucker's Com. 145; 1 Chitty's Pl. 58-9. 3d. If any deficiency existed in the declaration it was cured by the verdict. 7 Johns. R. 111; 1 Wilson's R. 100; 1 Chitty's Pl. 422-3; 2 Jacob's Law Dic. 54; 2 Tucker's Com. 146; Rev. Code Mo. 468; 4 Mo. R. 483; 5 Mo. R. 87. 4th. The verdict is according to the evidence in the case.
Arthur Tappan and others brought an action of assumpsit on a promissory note for one thousand dollars against William Muldrow. The defendant pleaded non-assumpsit, and on this issue the parties went to trial. The plaintiff gave his note in evidence, and, thereon, the defendant had judgment against him for the thousand dollars and interest. He then moved for a new trial, which was refused. He then moved in arrest of judgment for defect in the declaration, which the court overruled. The defendant brought his cause here by writ of error, and assigns for error the defect in the declaration. The declaration begins by declaring that Arthur Tappan and others complain of William Muldrow of a plea of trespass on the case on promises, for that whereas, heretofore, to-wit, on the 13th of May, 1835, at the county of Marion, in the State of Missouri, the said defendant did, by his certain writing, which he signed and executed by the name of Will. Muldrow, contract and agree to and with the plaintiff in the words and figures following, to-wit: Then follows a copy of the note or writing sued on. It is nowhere averred that the defendant promised any particular thing, but the note is set out without any...
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