Yantis v. Yourie

• Decision Date: 31 July 1847
• Citation: 10 Mo. 669
• Parties: YANTIS ET AL. v. YOURIE.
• Court: Missouri Supreme Court

10 Mo. 669

YANTIS ET AL.

v.YOURIE.

Supreme Court of Missouri.

July Term, 1847.

ERROR TO LAFAYETTE CIRCUIT COURT.

HICKMAN & WELLS, for Plaintiffs. 1. A party may maintain an action on a note given to him by a wrong or artificial name. 1 Monroe, 175; 2 Starkie's N. P. C. 29. 2. When the proper averments are made in a declaration, parol evidence is competent to prove, who was intended by the name in the note. 3. The deed and notes were legal evidence, tending to prove the allegations in the declaration. The deed to prove that plaintiffs were trustees--the notes to prove that such notes were given. 4. If the notes are not legal evidence, it must be because the plaintiffs cannot recover in such cases. The proofs correspond with the declaration strictly. If so, there ought to have been a demurrer to the declaration. Defects in a declaration cannot be reached by excluding appropriate and legal evidence.

HAYDEN, for Defendant. 1. That it devolves upon the plaintiffs, to maintain their action against the defendants upon the notes sued on, to prove that they were and are “The Trustees of the Addition to the town of Dover,” and that it does not devolve upon the defendant to show that they are not “The Trustees of said Addition.” 8 Wend. 480; 15 Wend. 315; 1 Cond. U. S. R. 371; 2 Johns. R. 109; 2 Cowen, 664; 6 Wheaton, 593; 2 Term R. 169; 5 Com. Law R. 216; 3 Johns. R. 477. 2. That the evidence offered by the plaintiffs to prove that they were “The Trustees of the Addition of the town of Dover,” was not competent or admissible to prove the fact; and that the Circuit Court did not err upon the trial of the cause, in rejecting the same; and consequently committed no error in refusing to set the non-suit aside, &c., upon the motion of the plaintiffs therefor. 1 Greenl. Ev. 316, § 266; Digest 1835, p. 283, § 10. 3. That the evidence offered by plaintiff was properly rejected, because it conduced to show that the plaintiff had sold defendant lots as the consideration of the notes sued on, situate in a town laid out by them, whereof no plat had been filed in the recorder's office prior to the sale. 7 Mo. R. 585, Downing v. Ringer.

SCOTT, J.

This was an action of assumpsit on several promissory notes, executed by the defendant in error to the plaintiffs, by the name and description of “The Trustees for the Addition of the town of Dover.” The declaration was in the proper form, averring that the notes were executed to the plaintiffs by the name and description of the trustees for the addition to the town of Dover. On the trial the plaintiffs offered to prove by witness, that they were the trustees for the addition to the town of Dover; that they had acted as such, that as such, notes had been executed to them by that description, and that they were known as such trustees. This evidence was excluded by the court. The plaintiffs then offered to read a deed showing that they had been made trustees for the addition to the town of Dover, by the owners of the land on which the addition was laid out. This was likewise excluded. The...