Payne v. Snell

• Decision Date: 31 October 1835
• Citation: 4 Mo. 238
• Parties: PAYNE v. SNELL.
• Court: Missouri Supreme Court

4 Mo. 238

PAYNE

v.SNELL.

Supreme Court of Missouri.

October Term, 1835.

ERROR TO ST. LOUIS CIRCUIT COURT.

MCGIRK, J.

Payne bronght an action of debt against Snell, on a bond for $1800. The declaration is in the common form. The defendant appeared and pleaded non est factum, without accompanying the same with an affidavit as the law directs. The plaintiff moved the court to set the plea aside as a nullity, for want of the affidavit, the court overruled the motion, and refused to set the plea aside. It has already been decided by this court, in the case of Hinton v. Bates, ^(a) June, 1835, that the plea of non est factum may be filed without affidavit, and that a motion to strike the same out as a nullity, is well overruled. On the trial of the issue of non est factum in this case, the plaintiff produced his bond and read the same. When the bond was read, it appeared that the same was subject to a condition of the payment of nine hundred dollars at several times by installments. The court then decided, that the legal effect of the bond, was only to pay $900, instead of $1800, as stated in the declaration, and found therefore, that the bond produced, was not the same as that declared on, and gave judgment for the defendant. It was also a part of the decision of the court, that the bond being subject to a condition, that condition should have been set out in the declaration.

The plaintiff in error makes the two points above stated, the last of which is, that the court erred in deciding the plea of non est factum for the defendant. In the argument of the cause, the counsel for Payne make three points. The 1st is, that the statute requiring the condition of a bond to be set out, is merely mandatory, and the failure cannot be taken advantage of on non est factum. 2nd. The goodness or badness of the declaration has nothing to do with the plea of non est factum, and the fact whether there was or was not a condition, makes it not the less the deed of the defendant 3d. There was in law no necessity to produce the bond, or offer the same in evidence. I will consider the first and third points together. I will first consider, whether under the plea of non est factum, without affidavit, where the suit is on a bond, there is any necessity to produce the bond in evidence. The statute says (see Rev. Code, 627), when any declaration or pleading shall be founded on any instrument in writing, purporting to be executed by the other party, whether under seal or not, the same shall be received in evidence unless the party charged to have executed it, shall deny the execution thereof by plea supported by his affidavit, &c. This statute, so far as regards unsealed instruments, has been adjudicated on in several cases. The first case, where this statute was brought under consideration, was the case of Wahrendorff and Ober v. Whitaker et al., 1 Mo. R. 205.^(b) That was an action brought on a promissory note, the plea, was “non-assumpsit.” When the plaintiff read his note, it appeared to have been made by an agent under a power, and this court held that the note itself, under the plea of “non-assumpsit,” must be produced, and the power of attorney also, that the court might judge, whether in law, there was by them created a valid promise, the court furthermore held that the effect of the statute was in such case, where there is no affidavit, merely to dispense with proof of the manual execution of the instrument. In the case of Hanley's Adm'r v. Reed's Adm'r, 1 Mo. R. 488, the effects of the statute on suits on promissory notes where “non-assumpsit” was the plea without affidavit, was again considered, in which case the court decided, the effect was only to discharge the plaintiff from the proof of the mere execution. It was also decided in this last case, that the note must be produced on the trial. In answer to the point made by counsel, that in this case there was no necessity to produce the bond at all, I will say, that there can in reason be no distinction between the case of a suit on a bond or on a promissory note. In both cases, the instruments sued on, must be produced when the plea is non est factum, or “non-assumpsit;” at common law, before this statute existed, when these pleas were put in, the plaintiff produced and proved his paper, and then read the same in evidence to the jury. Now he can read the same without this proof. On such pleas, unless the affidavit is filed, when the bond in such case is read, if it fit the declaration or pleading, then the party's case is made out; the defendant may then make his attack by way of defense, he may show by extrinsic evidence that there has been an alteration, he may show...