Thompson v. Kimball

55 Ill. App. 249, 1894 Ill. App. LEXIS 394

• Court: Appellate Court of Illinois
• Decided: November 12, 1894
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The defendant in error sued upon two promissory, notes, both in one count of the declaration, one of which was a general promise to pay, not saying when. The declaration concludes,“ by means whereof, the defendant then and there became liable to the plaintiff to pay the amount of said notes, according to the tenor and effect of said notes, and being so liable, in consideration thereof, then and there promised the plaintiff to pay him said amounts, according to the tenor and effect of said notes.

Tet the defendant has not paid to the plaintiff the amounts of said several promissory notes, or any, or either of them, or any part thereof, but refuses so to do, to the damage,” etc.

No demand, not even the often requested, is" alleged.

It is assigned for error: “ 1. The plaintiff did not attach to his declaration, nor file in said cause, copies of the promissory notes declared upon, nor a copy of either of them. 2. The declaration filed in said cause does not support the judgment so entered by default.” .

Whether there was a copy attached to or filed with the declaration can not be told here without a bill of exceptions, as such copy “ is no part of the record.” Stratton v. Henderson, 26 Ill. 68. Exhibits are not part of the pleadings at law. Hart v. Tolman, 1 Gilm. 1.

There is no bill of exceptions, and without discussing the question which the appellant seeks to raise by that first assignment it is overruled.

As to the second one, the appellant’s position is that no cause of action could arise on the note with no time of payment fixed, until demand; that in legal effect it was payable only on demand in fact. But his own authority is to the contrary. Story, Prom. Notes, Sec. 29.

The suit is enough demand. If it was not, entire damages from actionable and non-actionable causes in one count, would be bad. Chittick v. Town of Lake, 43 Ill. App. 632.

There is no error and the judgment is affirmed.