Page & Bacon v. Snow

Gamble, Judge, delivered the opinion of the court. Page & Bacon brought suit on a note which is negotiable under the statute, made by Snow, payable to Scott, alleged in the petition to have been indorsed by Scott to Ivers, and by Ivers to Mills, and by Mills to Harlow, and by Harlow to Wat [127] kins, and by Watkins to plaintiffs. Tbe suit is against Snow, tbe maker, and all the indorsers, except Scott, who was tbe payee and first indorser. Tbe petition alleges presentment for payment and notice of tbe dishonor to tbe defendants, and avers, that neither of tbe defendants bad paid tbe note nor any part thereof, and prays judgment for tbe amount of tbe note and interest. Ivers and Mills demurred to tbe petition, on the grounds that Scott should have been a party, and that tbe petition should have contained a statement of tbe sum due to tbe plaintiffs. It is also stated, as an objection to tbe petition, that it should have been averred that tbe note bad not been paid to tbe plaintiffs by Scott, the first indorser. T. Tbe eighth section of article four of tbe code permits persons severally liable, including parties to bills of exchange and promissory notes, to be included, all or any of them,, in the same action, at the option of tbe plaintiff. Tbe petition, then, is not bad, because Scott'was not made defendant. 2. Tbe third clause of section one, article six, requires that, if tbe recovery of money be demanded, tbe amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain tbe amount demanded. Tbe petition prays judgment for the amount of the promissory note, with interest. This is sufficient. Tbe petition states presentment for payment and refusal, and notice of tbe dishonor to the defendants. These facts gave a right of action against each of tbe defendants, and if each bad been sued by himself, a petition would have been sufficient which stated bis liability, and that be bad not paid. Tbe old form was, to state tbe making and indorsement of tbe note, its presentment and dishonor, and notice to the indorser, and then allege, “ By means whereof, the said defendant became liable to pay to the said plaintiff, &c., and being so liable, in consideration thereof, tbe defen - ant undertook and promised,5’ &c., and then state a breach of the promise by failing to pay. But these statements of liability and promise are not necessary. ‘ Tbe pleader may proceed, at once, from the statement of the defendant’s liability to bis [128] breach of contract in failing to pay. The fact that this suit is against several parties, severally liable, does not change the character of the pleading, as against each, or make it necessary to aver more, to make each of the defendants liable, than would have been required if he had been sued separately. If Scott, the first indorser, has paid the plaintiffs, they have no further right to maintain an action against the defendants, or either of them; but this fact is to be relied on and established by the defendants, just as each one of them would have been obliged to use it, if he had been sued on his indorsement in an action of assumpsit. The demurrers of Ivers and Mills ought not to have been sustained, and the judgment is reversed and the cause remanded, the other judges concurring.