Opinion
No. 3864
Decided January 22, 1946.
Negotiable instruments — Pleading — Petition setting forth note secured by mortgage — Not subject to motion to make definite and certain — Averment as to loan merely indicative of consideration — Interest recoverable although note silent as to rate — Presentation for payment not prerequisite to recovery.
1. An action on a promissory note is one at law for the recovery of a money judgment, and the petition setting forth the note which states it is secured by mortgage on lands "fully therein described" is not subject to a motion to make definite and certain by fully describing the lands.
2. In such an action, an award of six per cent interest is, under Section 8305, General Code, proper, even though the note is silent as to any rate of interest.
3. Failure to prove presentation of the note for payment before institution of such an action is, under Section 8175, General Code, no bar to recovery.
4. In a petition reciting that plaintiff loaned defendant a named sum, as evidence of which defendant executed the promissory note set forth in the petition, that defendant made no payment, and that there is due the named sum plus interest, the averment as to the loan indicates merely the consideration for the note and does not indicate the predicate of the action.
APPEAL: Court of Appeals for Franklin county.
Mr. H.Z. Bostwick and Mr. W.B. Cockrell, for appellee.
Mr. James F. Little, for appellants.
This appeal is on questions of law from a judgment of the Court of Common Pleas, in favor of plaintiff and against defendants, for $500 with interest at six per cent and costs.
The petition recites that on April 30, 1930, plaintiff loaned to the defendants the sum of $500, and that as evidence of such loan the defendants executed their promissory note, a copy of which note is set out verbatim.
It is further averred that the defendants have paid no part of the principal or interest, and that there is due and owing plaintiff the sum of $500 together with interest at six per cent per annum from October 30, 1930.
Defendants moved to make the petition definite and certain, which motion was overruled. They then demurred generally and on the ground that the action was not brought within the time limited for the commencement thereof. The demurrer was overruled. Defendants then answered, setting up three defenses, the first of which is substantially a general denial; the second, that the cause of action is barred by the statute of limitations; the third, that plaintiff made no presentation demand for payment on the instrument sued on and was therefore estopped from recovery thereon.
The cause was presented upon the issues drawn, and judgment was entered as hereinbefore stated.
The first assignment of error is that the court erred in overruling defendants' motion to make the petition definite and certain. This motion was predicated on the theory that the note set out in the petition stated that it was secured by a mortgage executed by the makers of the note on lands in Columbus, Ohio, "fully therein described." The motion sought to require the plaintiff to set out a full description of the property set forth in the mortgage. The motion was not well taken for the obvious reason that the suit was one at law for the recovery of a money judgment and not for any relief under the mortgage, which relief could be secured only under the equitable jurisdiction of the court.
The second assignment of error is directed to the overruling of the demurrer. The first branch of the demurrer is that the petition does not state a cause of action on the note because the petition is predicated upon a loan on the theory of money lent or assumpsit and fails to state a cause of action for recovery on the note in that no averment is made of the amount claimed to be due to the plaintiff on the note.
The petition conforms to Section 11334, General Code, in that it sets forth a copy of the note and states "that the defendants have paid no part of principal or interest and that there is now due and owing plaintiff from the defendants the sum of $500," etc. There is no doubt that the action is predicated upon the note, the loan averment merely indicating the consideration for which the note was executed and delivered.
The second branch of the demurrer is that because the action is in assumpsit it is barred by the statute of limitations. What we have said respecting the action being on a note disposes of this claim.
The third assignment of error is two-fold: First, it is claimed that there is no basis for an award of interest at six per cent from the date the note is due because the note is silent as to any rate of interest. The judgment in that respect is in accord with Section 8305, General Code. The second branch of the third assignment is that the plaintiff should not have recovered because there was no proof of presentation of the note for payment, before the filing of the action.
Section 8175, General Code, provides:
"Presentment for payment is not necessary in order to charge the person primarily liable on the instrument * * *."
The judgment is affirmed.
Judgment affirmed.
WISEMAN and MILLER, JJ., concur.