Lake v. Fletcher

280 F. 1020, 52 App. D.C. 46, 1922 U.S. App. LEXIS 1909

Opinion

ROBB, Associate Justice.

The plaintiff, appellee here, declared upon the common counts, and in his particulars of demand and affidavit of merit set out a series of overdue promissory notes aggregating, with interest and a reasonable attorney’s fee provided for in the notes, $10,-787.57. The defendant, appellant here, demurred; his contention below being that it is impossible to decide whether the suit is brought upon the promissory notes or under the original consideration. Here the contention, in substance, is that plaintiff should have specially declared on the notes.

The case is ruled by our decision in Holley v. Smalley, 50 App. D. C. 178, 269 Fed. 694, wherein we held that—

“A suit upon a promissory note may be sustained upon a declaration in as-sumpsit, either upon the common counts or upon a declaration upon the contract.”

It follows that the judgment must be affirmed, with costs.

Affirmed.