Bick v. Yates

REYNOLDS, P. J. (after stating the facts). — We are unable to concur with the conclusion of the learned trial judge, that by the omission of the averment, “that by their note the defendants promised to pay,” the petition failed to state a cause of action. By failure to verify their plea of non est factum,, the execution of the note was admitted. The execution of the note, “for value received,” as set out in the petition, implied an obligation to pay. Our appellate courts have specifically decided that however it may have been under the rules of common law pleadings, under our system of code pleading, the action being on a note, it is not necessary to aver an express promise on the part of the defendant to pay. [Kansas City National Bank v. Landis et al., 34 Mo. App. 433, and authorities there cited.] See also Hammett et al. v. Trueworthy, 51 Mo. App. 281, l. c. 284. As the case will have to be retried, we suggest that all possible question can be avoided by amending the [270] petition to conform to the note itself, which, as we have seen, begins thus: “Twelve months after date, for value received, we promise to pay,” etc. It is so obvious to us that the plaintiff had it within his power to meet the objection of the court by a very slight concession to the views of the court, involving no sacrifice of any substantial right, that if we could do so, consistently with the law and not thereby make a bad precedent, we would affirm this case for the obstinacy of the plaintiff. Cases are not to be managed in any such manner by parties or counsel. It is due the counsel whose name appears on the brief here filed along with plaintiff himself, to say that counsel does not appear to have been associated with plaintiff in the management of the case in the trial court. The judgment of the lower court is reversed and the cause remanded for proceedings in accordance with this opinion. AH concur.