Messmore v. Morrison

Opinion by Mr. Justice McCollum, We think the writing in question fairly includes a promise by the maker of it “ to pay Amanda Messmore or order five thousand dollars with interest at the rate of six per cent without defalcation or stay of execution.” It expressly acknowledges the receipt of a consideration and it is under seal. It is payable forthwith because where no time is named for payment the law so decides. The natural inference from the language of the instrument is that the consideration passed from the payee [304] to the maker and that it consisted of a loan of the sum to be paid to her or her order as therein stated. The first mention of this sum is certainly reconcilable with such a construction of the obligation, and otherwise without significance. The instrument clearly imports an undertaking for value received to pay the plaintiff or order the sum mentioned in it, and the only reasonable inference from the language of it is that the party who executed it and received the consideration for the promise, by a plain implication included in it, is the party to pay in accordance with its terms. The objection that the evidence does not sufficiently show the execution of the instrument by the Joseph Morrison whose estate is represented by the defendant comes too late. It was not made on the trial and the rule is that “ where a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived: ” Lovett’s Exrs. v. Mathews, 24 Pa. 330. After two trials of the case in the court below without a suggestion in any form that the execution of the note by the defendant’s intestate was not sufficiently proven, his representative has no standing to raise the question on this appeal. We will add, however, that an examination of the evidence relating to the execution of the note shows that the objection now taken to its sufficiency is groundless. The defendant contends that a suit cannot be maintained on the instrument in question without a previous demand upon him or the maker for payment of it. In considering this contention it is worthy of note that the husband of the plaintiff testified that before suit brought and after letters of administration were issued to the defendant he demanded of him payment of the note, and payment was refused; and further that this testimony was not contradicted by the defendant. But waiving consideration of the evidence on this point there was nothing shown which cast on the plaintiff,the burden of submitting affirmative and direct proof of a demand before suit: Hall et al. v. Toby, 110 Pa. 318; McConeghy v. Kirk, 68 Pa. 200, and Rhoads v. Reed, 89 Pa. 436. Interest on the sum to be paid to Amanda Messmore or order was properly computed from the date of the obligation and the claim that it should have been calculated from a later date has nothing to support it. [305] The matters to which we have referred constitute the material ingredients of the defense, and having duly considered them we are satisfied that they furnish no ground for reversing the judgment. The specifications of error are overruled. Judgment affirmed.