Ubsdell v. Cunningham
Decision Date | 31 October 1855 |
Citation | 22 Mo. 124 |
Parties | UBSDELL & PIERSON, Appellants, v. CUNNINGHAM, Respondent. |
Court | Missouri Supreme Court |
1. Instruments in the following forms: “Due A. B. $100, to be paid over to him as soon as collected at P., now in the hands of H. B. P. of that place,” and “Due A. B. $34 63 for goods purchased of him while at P., to be paid as soon as collected from my accounts at P.,” are promissory notes, not mere conditional obligations to pay. The words “to be paid,” &c., merely prescribe the time of payment by indicating the fund out of which the debtor expects to pay, and thereby securing to him the delay necessary to render it available.
2. When all has been collected upon the claims that can be collected at all, the notes become due and payable.
Appeal from St. Louis Law Commissioner's Court.
This was an action originally commenced before a justice of the peace, and taken thence by appeal to the law commissioner's court. The cause of action was founded on the following instruments, notes or due bills:
On the trial before the law commissioner's court, the following agreement or stipulation was given in evidence on the part of the plaintiffs: It was also in evidence that plaintiffs were in March, 1849, co-partners, under the name and style of Ubsdell & Pierson, and doing business in the city of New York. There was also evidence tending to prove that unsuccessful efforts had been made by H. B. Potter to collect the accounts left in his hands by defendant, Cunningham, and that such accounts were now collectible.
Upon this evidence, the court, on motion of defendant, instructed the jury that the plaintiffs were not entitled to recover; whereupon the plaintiffs took a non-suit, with leave to move to set the same aside; which motion having been made and...
To continue reading
Request your trial-
Caine v. Hagenbarth
... ... 258; Walters v. McBee, 1 Lea ... [Tenn.] 364; Paige on Contracts, Sec. 1156; Lewis v ... Tifton, 75 Am.Dec. 498; Ubsdel v. Cunningham, ... 22 Mo. 124; Hood v. Hampton Plains, etc., 106 F ... 408.) When an appellate court is asked to set aside the ... verdict of a jury in a ... ...
-
Prideaux v. Plymouth Securities Co.
...1; Mo. & Ill. Coal Co. v. Willis Coal & Min. Co., 235 S.W. 119; Gratz v. Highland Scenic Ry. Co., 165 Mo. 211, 65 S.W. 223; Ubsdell v. Cunningham, 22 Mo. 124; 13 J. 569, 614, Contracts, Secs. 539, 664. A case cannot be determined on appeal on a theory not urged at the trial. Estes v. Nell, ......
-
Mitchell v. Health Culture Co.
...performance would become due within a reasonable time. In view of the other allegations, it also became due for other reasons. Ubsdell v. Cunningham, 22 Mo. 124; Bank Corning v. Consolidated School District, 54 S.W.2d 486, l. c. 490, 227 Mo.App. 523, l. c. 530; Kansas City ex rel. Barnett v......
-
Lehner v. Roth
... ... petition. (2) The instrument sued on is a promissory note ... Finney v. Shirley & Hoffman, 7 Mo. 42; McGowen ... v. West, 7 Mo. 569; Ubsdell & Peirson v ... Cunningham, 22 Mo. 124; Brady et al. v ... Chandler, 31 Mo. 28; Locher v. Kuechenmiester, ... 120 Mo.App. 701. (3) The action in ... ...