Matlock v. Purefoy , 18 Ark. 492 ( 1857 )

Mi’. Justice Scott

delivered the opinion of the Court.

The action was assumpsit on a promisory note. There was a special count on the note bearing ten per cent, interest, setting it out according to its legal effect, and a count on an account stated, alleging a promise to pay the amount named with ten per cent, interest. It was not alleged that the promise to pay this last named interest was in writing.

There was a demurrer assigning — 1. Because the note was not described as payable to John Matlock or hearer — 2d. Was not described as given for 'value received — 3d. Was not described as made at Camden, Arkansas — -4th. The breach was not sufficiently certain in its negative as to the ten per cent, interest.

The breach was, “ has not paid any of the said moneys, or any part thereof, or the said ten per cent, interest, or any part of the said interest.”

The note, which we will presume was given on oyer, although there is no entry to that effect in the record, was dated “ Camden, Arks.” — was payable to J. M. “ or bearer,” and “ for value received” was upon its face.

The Court sustained the demurrer to the first count, and overruled it as to the second. The fatal defect in the second count (Dig. Stat. of Interest, sec. 2, p. 614,) not having been pointed out in the demurrer, was, no doubt, considered by the Court as amended, as by striking out the words “ ten per cent, interest,” under section 62 of the statute of demurrers. (Dig. chap. 126, p. 806)

We think, however, that none of the supposed defects expressed in the demurrer, ought to have been regarded as sufficient to authorize the Court to sustain it. Not one of them pointed out a substantial defect, as we think. There was no effort to set out the note in haecverha. 1st. If the plaintiff had declared on a derivative title, and there was no endorsement, then, to show title to sue, he would have had to allege the note as payable to“J. M. or bearer;” but in this case, J. M., the payee, was himself the plaintiff. 2. The plaintiff alleged that the defendant “ made his promissory note.” A promissory note imports value received. Story on Prom. Notes, sec. 51. 3. In the case of Semon et al. vs. Hill ad., 2 Eng. R. 73, this Court cited with approbation the case of Houriet vs. Morris, 3 Campbell R., in which Lord Ellenborough held it unnecessary to state the place where the instrument was made. (See, also, Chitty on Bills, p. 564. Payne vs. Brittin exr., 6 Rand. 101.) Where a bill may have been made in a foreign country, and the plaintiff seeks to recover interest or damages different from that allowed by the law of the forum, then the place ought to be alleged, because, in that case, matter of substance. In general, however, if stated, it would not be traversible, and would be treated as surplusage. (Swinney et al. vs. Burnside & Co., 17 Ark. R. 38.) 4. As to the breach, although not absolutely certain to every intent in every particular that a sharp lawyer in sharp practice might conceive, it seems good enough. Because, it is easy to see that the plaintiff said that the defendant had paid no part of the money or interest that he had before alleged he had promised to pay him.

But although the Court erred in sustaining the demurrer, it is perfectly clear that the decision upon the other question was right; — that is, in excluding the note as evidence upon the second count, after the first was quashed, until its execution should be-first proven as at common law. Because then the declaration was not “ founded upon any instrument or note in writing charged to have been executed by the other party” (Dig. ch. 126, secs. 103-'4; Bank of the State vs. Kirby, et al., 4 Eng. R. 353,) but was upon an account stated, not charged to have been signed by the defendant.

Judgment reversed and cause remanded.

Absent, Hon. Thos. B. Hanly.