First National Bank v. Landis , 34 Mo. App. 433 ( 1889 )

Gill, J,

Counsel for appellant Behney, for reversal of this cause, relies on two points, to-wit:

(1) That the petition states no cause of action against defendant Behney, and (2) that judgment was improperly rendered against both Landis and Behney upon a verdict which was against one alone.

I. In determining the sufficiency of a petition under our code, we look to the allegations of fact therein contained ; and if these matters alleged in the petition, admitting them to be true, impose a liability on the.defendant,'the petition is not demurrable. The varied forms of action of the common law have no place in our practice, since the adoption of the code in 1849.

The pleader is only required to make “ a plain and concise statement of the facts constituting the cause of action.” The petition in this cause substantially alleges that defendant, J. K. Landis, on January 25,1888, made his promissory note by which he promised to pay to the order of plaintiff the sum of twelve hundred dollars with ten per cent, interest after maturity. The due day is alleged to be February 7, 1888. That at the making of said note defendant Behney endorsed the same on the back, and thereby became a maker of said note, with the said Landis. Presentment for payment and refusal is alleged, and judgment asked. Now if these allegations are true (and we so concede for the purpose of a demurrer) then sufficient facts appear to warrant judgment, not only as against defendant Landis, but as well against defendant Behney. It stands admitted by the demurrer that defendants Landis and Behney made this joint obligation to pay the plaintiff twelve hundred dollars on February 7, 1888 ; for to say that one party executed a certain instrument of a certain tenor and effect and that another person at the same time, also joined in the execution thereof, is, in effect, the same as to allege in the first instance a joint execution by both persons.

Defendant’s counsel contend that there should have been an express allegation, in addition to declaring the making of the note, that defendant Behney “ thereby promised to pay” etc., and cites in support of this position the case of Muldrow v. Tappan, 6 Mo. 276, followed by a later case in 8 Mo. 471.

It is there held that in the old common-law action of assumpsit the declaration, in addition to alleging the execution of the note, is bad on demurrer, unless a promise on the part of the defendant is also alleged. It seems this was the rule under the common-law pleading, though there is respectable authority, holding “that in declaring in assumpsit, on a promissory note, against the maker, a statement of the facts, which render the defendant liable to pay, is sufficient, without expressly alleging a promise on his part.” The reason for this' holding is that the making of the note is, of itself, an actual promise. Gould Plead., sec. 19, note 5.

However this may have been under the rules of the common-law pleading, the reason therefor, and along with it the rule itself, no longer has place under our code practice. It was required in the action of assumpsit, because therein was the distinguishing feature of that form of action. It was a suit based on a promise, and unless a promise was alleged, the pleader was condemned as pursuing the wrong remedy. 1 Chitty PI. 308. Gould’s PL, sec. 19.

Formerly the issue by plea of non-assumpsit was taken on this allegation of promise — the facts being regarded as mere inducement. 1 Chitty PL 121.

But under the code practice, as now generally existing in this country, these particular forms of actions and legal fictions are abolished. The pleader is required only to state the facts upon which he grounds his complaint or defense. We have but one form of action, and that is denominated by statute “ a civil action.”

The cases relied on in 6 Mo. and in 8 Mo. supra, were decided under the rules of the common law, and several years before the adoption of the code practice by the legislature of Missouri in 1849 — by reference to the forms of pleading then suggested by our law-makers it will be seen how earnest they were in cutting loose from the former intricacies and mere fictions of the old rules. Laws 1849, p. 105 and following.

The decisions under codes, such as that of Missouri, are quite uniform, that the promise need not be alleged, if from.the facts alleged a promise is implied. “The promise to pay, alleged in assumpsit was a mere conclusion of law from the facts stated, and as the new code only requires the facts to be stated, they are sufficient without setting forth the conclusions of the law arising from those facts.” Wilkins v. Stidger, 22 Cal. 235. “It is no longer necessary, in such cases, for the plaintiff to allege in his complaint any promise on the part of the defendant, but he must state facts, which if true, according to well settled principles of law, would authorize the court to infer a promise.” Cropsey v. Sweeney, 27 Barb. 312 ; Wills v. Wills, 34 Ind. 108; and Bliss Code PL, sec. 152 and authorities cited. We think, then, that notwithstanding the unskilful manner in which this petition was drawn, it is yet sufficient, in that the facts are alleged with such precision as to fully warn the defendant with what he is charged. But did we even, regard the petition as defective, yet reversal would not follow, since it appears that issues were formed by answer and reply and the defendant was fairly heard on the only defense he claims. Instructions, entirely favorable to a just disposition of the merits of the case, were given, and the jury’s finding as to the facts, settled the existence of such facts as justify the judgment. Conley v. Doyle, 50 Mo. 235.

II. The remaining point urged by defendant Behney’s counsel, to-wit: That the judgment was improperly entered against both defendants, whereas the verdict was only against one, we are not called upon to review since in the motions in arrest and for new trial, in the circuit court, no such point is made.

If there was any error in that regard the circuit court should first have been asked to correct it. If this was not done then this court will not review the question.

This judgment, however, though informal in some immaterial matters, is yet a good and valid judgment against both defendants. It would have been more strictly correct to recite, in the judgment against Landis, that the allegations stood confessed as to him for want of answer, rather than default (for he did appear) still the error was unsubstantial. It would, too, have been well to have stated in the record, that as the action was on a promissory note the court thereupon assessed the damages as against said defendant Landis at the amount of principal and interest, etc., — yet although this does not very definitely appear, the result is the same. Landis did not answer and the judgment is against him for the amount of the note and interest.

Judgment affirmed.

The other judges concur.