Parkinson v. Diefenderfer
| Decision Date | 28 February 1955 |
| Docket Number | No. 9411,9411 |
| Citation | 128 Mont. 547,280 P.2d 424 |
| Parties | P. A. PARKINSON, Plaintiff and Appellant, v. W. R. DIEFENDERFER, Defendant and Respondent. |
| Court | Montana Supreme Court |
Franklin S. Longan, argued orally, Robert L. Jones, Billings, for appellant.
Franklin A. Lamb, argued orally, Charles F. Moses, Billings, for respondent.
WILLIAM R. TAYLOR, District Judge sitting in place of Mr. Justice Davis, disqualified.
Plaintiff's complaint contained two causes of action, the first to recover $20,000, and the second $10,000, on two promissory notes that were made by defendant to plaintiff. In the complaint it was alleged in both causes of action that 'Defendant made, executed and delivered to Plaintiff his promissory note'; the notes were set out in haec verba; and it was alleged that the defendant had not paid the note or any part thereof to plaintiff, and that the full amount of the note, together with interest, was due and owing from defendant to plaintiff. In neither cause of action was it stated that the plaintiff is now, and at all times has been, the owner and holder of said note, and on the day before trial, which was 22 months following the filing of the complaint, and 13 months from the time the case became at issue, plaintiff filed his motion to make such amendment to both causes of action. The motion was argued following the selection of the jury, and upon the authority then cited, the court believing that because of the failure to include the allegation sought to be made causes of action were not stated, and that the motion to amend and to change the complaint to state for the first time causes of action was not timely made, denied the motion. At the outset of plaintiff's examination of his first witness, defendant objected to the introduction of evidence on the ground that neither count of the complaint stated a cause of action, and upon the objection being sustained by the court, defendant moved for dismissal of the action. Plaintiff's appeal is from the judgment of dismissal.
It is a fundamental rule of pleading in actions on bills and notes that the plaintiff must allege facts showing title or right to sue. In an action by the payee named in the instrument, however, a formal allegation that he is still the owner and holder is unnecessary if the execution of the instrument, its delivery to the plaintiff, and the default of the maker or acceptor are alleged. From such facts the payee's ownership will be presumed. This court so held in the case of J. I. Case Threshing Machine Co. v. Simpson, 54 Mont. 316, 170 P. 12. Additional authorities are: 8 Am.Jur. Bills & Notes, Sec. 954, pp. 563, 564; 10 C.J.S., Bills & Notes, Sec. 594, p. 1218; Albergo v. Gigliotti, 96 Utah 170, 85 P.2d 107, 129 A.L.R. 967; First National Bank of Tucumcari v. Lutz, 28 N.M. 615, 216 P. 505; Phillips v. Oppenheim, 125 Okl. 181, 256 P. 352; Van Marel v. Watson, 28 Ariz. 32, 235 P. 144; Dysert v. Weaver, 46 Cal.App. 576, 189 P. 492; Hobbs v. Citizens' Bank of Wrens, 32 Ga.App. 522, 124 S.E. 72; Gibson v. Hannay, 198 Iowa 930, 200 N.W. 579; Kirby v. Robinson, 226 Mo.App. 561, 44 S.W.2d 253; Thompson v. Johnson, 202 N.C. 817, 164 S.E. 357; Advance-Rumely Thresher Co. v. Johnson, 62 N.D. 553, 243 N.W. 919; Western & Southern Fire Ins. Co. v. Murphey, 56 Okl. 702, 156...
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National Merchandising Corp. v. McAlpin, 8840
...plaintiff was the present owner and holder of the note. Kirby v. Robinson, 226 Mo.App. 561, 44 S.W.2d 253, 254(2); Parkinson v. Diefenderfer, 128 Mont. 547, 280 P.2d 424, 425(1, 2). Nevertheless, plaintiff attached the exhibit, and of course it became a part of the pleading for all purposes......