Prescott v. Grady

Temple, C. This action is brought upon a promissory note executed by defendant. Judgment was entered against him on the pleadings, and it recites that the defendant was duly and regularly served with notice of the time and place of hearing the motion.

There is inserted in the transcript, however, what purports to be a notice of the hearing of the motion May 30, 1890, a legal holiday. The judgment recites that the motion was heard June 20, 1890. There is no bill of exceptions, and we cannot conclude that the notice, inserted without authority in the transcript, is the notice in pursuance of which the motion was finally heard. The notice constitutes no part of the judgment roll.

[520]The judgment shows that it was entered upon the pleadings on the theory that the answer raises no issue, and the question is, whether this ruling was correct.

The suit is upon a promissory note, which is set out at length in the complaint. It is in the usual form, except that it contains this stipulation: “ And if this note is collected by suit, I agree and promise that the court having jurisdiction allow a reasonable attorney’s fee, together with all legal expenses, to be made part of the judgment.”

It is also averred that payment has been demanded and no part paid, and that seventy-five dollars is a reasonable attorney’s fee.

The answer denies that payment of the note was ever demanded; that seventy-five dollars or any other sum is a reasonable attorney’s fee; and alleges that that stipulation for an attorney’s fee was without consideration. All the other facts constituting plaintiffs’ cause of action are expressly admitted.

Appellant does not wish to open the well-settled question whether suit may be brought upon a note payable on demand without other demand than the bringing of the suit, but he claims that the contract sued on is more than a promissory note; that it contains a stipulation for special damage in case suit be brought, and that he ought not to be held to have incurred this liability until he is in default according to the terms of his contract; that is, until he has failed to pay on demand.

On principle, it is difficult to resist this argument. It is well settled that suit may be brought at once on a demand note, but the rule does not seem to be in accord with the general principles of pleading. The cause of action would consist of the right to the money on demand, the demand, and the breach of the agreement, to wit, failure to pay. If the bringing of the suit is the demand, still, before suit brought, there was no breach. It is an exception to general rules established by precedent, and when confined to a recovery of the debt, there is no great harm in the exception; but where special damage