Finney v. Pennsylvania Iron Works Co.

D.C. Circuit

Finney v. Pennsylvania Iron Works Co.

22 App. D.C. 476, 1903 U.S. App. LEXIS 5551

CourtCourt of Appeals for the D.C. Circuit

DecidedOctober 21, 1903

DocketNo. 1295

StatusPublished

This text of 22 App. D.C. 476 (Finney v. Pennsylvania Iron Works Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finney v. Pennsylvania Iron Works Co., 22 App. D.C. 476, 1903 U.S. App. LEXIS 5551 (D.C. Cir. 1903).

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Opinion

Mr. Justice Morris

delivered the opinion of the Court:

We find no merit in this appeal. The plaintiff’s declaration and affidavit are not models of good pleading; but we cannot say that they are insufficient. The only defect in this regard which would seem to require any serious consideration is the apparent variance between the note sued on in the body of the declaration and that set forth in the particulars of demand annexed ther&to. The latter is plainly a negotiable instrument, while the former is claimed to be non-negotiable, as it does not purport to be payable “to the order” of anyone, or “to bearer,” but only to a certain named payee. This objection, although plausible, is not substantial. The declaration is undoubtedly defective; and, as we have said, we cannot regard it as a model of good pleading. But the bill of particulars is part of the declaration, and serves to remove any uncertainty inherent in the latter. Moreover, it was competent for the trial court to allow an amendment; and it [481]*481would be competent for us under the circumstances to allow it here, if it were necessary. Aided by the particulars of demand, the statement of the declaration that the note in suit had been ■drawn payable to the payee therein named, and by it indorsed to the plaintiff, must be regarded as setting forth a negotiable promissory note. But we trust that our decision in this case will not be regarded as a sanction of careless pleading, of which in the experience of the court we have had too many illustrations.

The principal reliance of the appellant seems to be upon the ■supposed insufficiency of the plaintiff’s affidavit to warrant a judgment under the 73d rule of the court below. The contention is that, while the plaintiff declares upon the note as indorsee, yet the affidavit shows that it should have sued as guarantor. But this contention is plainly fallacious. The plaintiff’s guaranty was to the bank, and it has served its purpose and is out of the ■case. It did not concern the defendant in any manner. The allegation in the affidavit in regard to it may well he regarded as surplusage. The plaintiff became the holder and owner of the note in due course of business by the transfer of it by the bank, subject, of course, to such equitable rights as the defendant might "have against the payee in regard to it; and there was no necessity for any writing upon it, such as is claimed on behalf of the defendant, to give title to the plaintiff and to warrant suit by it, since by the indorsement in blank of the electric company, it ■could pass thereafter by mere delivery.

Objection also is made on behalf of the appellant that the note was not filed with the declaration, or produced in evidence before the court at the time of the rendition of judgment. But it is not the practice, and it would be unreasonable to require, that a promissory note which is the subject of suit should be filed with the declaration. It is sufficient if it is produced at the trial or at the hearing on motion for judgment; and we must presume that this was done, since there is nothing in the record to show the contrary. And if it was not done, it was the duty of the defendant and his right to resist the entry of judgment for that reason, and to have the omission made matter of record, if he desired to preserve the point for this court. He has done nothing [482]*482of the kind, and the consequent presumption-is that the court below acted in the premises in accordance with law. It is true that the appellee has admitted in the argument before us that through inadvertence he did not file the note with the clerk at. the time of the entry of judgment, but states that he subsequently did so. Plainly, therefore, the defendant has uo valid ground of complaint in that regard.

The claim of the appellee appears to be a just one. There is; no pretense that the appellant has any just defense to it. The-objections raised against the claim are of the most technical character, and wholly unsubstantial. . We think that the judgment of the court below was right and just, and that it should be affirmed, with costs. And it is accordingly so ordered. Affirmed-

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Mr. Justice Morris

delivered the opinion of the Court:

We find no merit in this appeal. The plaintiff’s declaration and affidavit are not models of good pleading; but we cannot say that they are insufficient. The only defect in this regard which would seem to require any serious consideration is the apparent variance between the note sued on in the body of the declaration and that set forth in the particulars of demand annexed ther&to. The latter is plainly a negotiable instrument, while the former is claimed to be non-negotiable, as it does not purport to be payable “to the order” of anyone, or “to bearer,” but only to a certain named payee. This objection, although plausible, is not substantial. The declaration is undoubtedly defective; and, as we have said, we cannot regard it as a model of good pleading. But the bill of particulars is part of the declaration, and serves to remove any uncertainty inherent in the latter. Moreover, it was competent for the trial court to allow an amendment; and it [481]*481would be competent for us under the circumstances to allow it here, if it were necessary. Aided by the particulars of demand, the statement of the declaration that the note in suit had been ■drawn payable to the payee therein named, and by it indorsed to the plaintiff, must be regarded as setting forth a negotiable promissory note. But we trust that our decision in this case will not be regarded as a sanction of careless pleading, of which in the experience of the court we have had too many illustrations.

The principal reliance of the appellant seems to be upon the ■supposed insufficiency of the plaintiff’s affidavit to warrant a judgment under the 73d rule of the court below. The contention is that, while the plaintiff declares upon the note as indorsee, yet the affidavit shows that it should have sued as guarantor. But this contention is plainly fallacious. The plaintiff’s guaranty was to the bank, and it has served its purpose and is out of the ■case. It did not concern the defendant in any manner. The allegation in the affidavit in regard to it may well he regarded as surplusage. The plaintiff became the holder and owner of the note in due course of business by the transfer of it by the bank, subject, of course, to such equitable rights as the defendant might "have against the payee in regard to it; and there was no necessity for any writing upon it, such as is claimed on behalf of the defendant, to give title to the plaintiff and to warrant suit by it, since by the indorsement in blank of the electric company, it ■could pass thereafter by mere delivery.

Objection also is made on behalf of the appellant that the note was not filed with the declaration, or produced in evidence before the court at the time of the rendition of judgment. But it is not the practice, and it would be unreasonable to require, that a promissory note which is the subject of suit should be filed with the declaration. It is sufficient if it is produced at the trial or at the hearing on motion for judgment; and we must presume that this was done, since there is nothing in the record to show the contrary. And if it was not done, it was the duty of the defendant and his right to resist the entry of judgment for that reason, and to have the omission made matter of record, if he desired to preserve the point for this court. He has done nothing [482]*482of the kind, and the consequent presumption-is that the court below acted in the premises in accordance with law. It is true that the appellee has admitted in the argument before us that through inadvertence he did not file the note with the clerk at. the time of the entry of judgment, but states that he subsequently did so. Plainly, therefore, the defendant has uo valid ground of complaint in that regard.

The claim of the appellee appears to be a just one. There is; no pretense that the appellant has any just defense to it. The-objections raised against the claim are of the most technical character, and wholly unsubstantial. . We think that the judgment of the court below was right and just, and that it should be affirmed, with costs. And it is accordingly so ordered. Affirmed-

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22 App. D.C. 476, 1903 U.S. App. LEXIS 5551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finney-v-pennsylvania-iron-works-co-cadc-1903.