Gordon v. Mames

10 Ky. Op. 175, 1879 Ky. LEXIS 105

• Court: Court of Appeals of Kentucky
• Decided: January 8, 1879
• Status: Published

Opinion

Opinion by

Judge Coper :

If it be conceded that the assignment of errors is sufficient to raise the question of the sufficiency of the petition the judgment must still be affirmed. The writing sued on is copied in full into the petition, and imports a promise to pay the sum sued for, ánd no allegation of any other promise was necessary. The cases cited by counsel were unlike this. There the pleader did not set out in his petition the writing sued upon, but alleged that it was a writing of a certain character, without stating more except to refer to and make it part of the petition. ‘Whether the writing was what he styled it was merely his conclusion; and when he alleged that it was a note he did not allege a fact, but merely his opinion. In this case the writing sued upon is copied into the petition, and the court may decide whether it has been correctly called a note. The writing is not in fact a note. It is a simple acknowledgment of indebtedness; and from that acknowledgment the law implies a promise, and the code dispenses, in such cases, with the averment of the promise.

W. M. B'eckner, for appellants. T. & J. W. Rodman, for appellees.

No allegation the plaintiff could have made would have made the petition better than it is. All the facts necessary to the cause of action appear from the writing, and no allegation that could have been made would have affected in any way its legal import. John D. Gordon acknowledged that he owed the plaintiff $75, and the law thereupon raised a promise to pay it; and an allegation of a promise would have been a mere allegation of a legal presumption, which, as we have said, is not necessary.

Judgment affirmed.