Dailey v. Sharkey
Missouri Court of Appeals
Appeal from the St, Louis Circuit Court, Hon. George W. Lubke, Judge. The note offered in evidence is made payable at the Mullanphy Savings Bank, while the one declared on does not mention' any place of payment; the allegata and probata, therefore, do not correspond. And so with the proof of demand, the proof, and the finding of the court is, that no demand was made on John Sharkey, as averred, but on the cashier of the bank.
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Appeal from the St, Louis Circuit Court, Hon. George W. Lubke, Judge. The note offered in evidence is made payable at the Mullanphy Savings Bank, while the one declared on does not mention' any place of payment; the allegata and probata, therefore, do not correspond. And so with the proof of demand, the proof, and the finding of the court is, that no demand was made on John Sharkey, as averred, but on the cashier of the bank. Price v. Railroad, 72 Mo. 423; Faulkner v. Faulkner, 73 Mo. 327. The defence of former recovery is pleaded and sustained by proof offered by the defence. The cause of…
1Opinion of the CourtRohbauee, J.
This is an action upon a promissory note for three hundred dollars, by the holder against the endorser. The execution of the note and endorsement are admitted. Two defences are interposed, want of presentment for payment and notice of dishonor, and a former recovery.
Upon the trial of the cause before the court without a jury, there was judgment for plaintiff. The defendant, appealing, assigns for errors that there was a failure of proof, and that the court erred in not sustaining his plea of former recovery.
The first exception arises under the following facts : *520The note sued ou was payable,…
2Cases cited4 opinions
- Fithian v. MonksSupreme Court of Missouri · 1869
- Ferris v. ThawSupreme Court of Missouri · 1880
- Ferris v. ThawMissouri Court of Appeals · 1878
- Townsend v. Chas. H. Heer Dry Goods Co.Supreme Court of Missouri · 1885