Lehner v. Roth , 295 Mo. 174 ( 1922 )

This case was heard in the St. Louis Court of Appeals. The judgment was affirmed. REYNOLDS, P.J., dissented and certified that he deemed the opinion to be in conflict with certain decisions of this court. The case was transferred here. [Lehner v. Roth, 227 S.W. 833, 229 S.W. 232.]

For the facts we refer to the opinion of the Court of Appeals. A consideration of the record and the two opinions and the additional authorities cited in this court produces the conviction that the Court of Appeals reached the correct result. The decisions cited in the dissenting opinion are not in point. In each of them the writing considered contained language which expressly stated an obligation to pay, or facts from which such an obligation arose as an implication of law. For this reason each of these writings was held to be "a writing for the payment of money." The same thing is true of the additional decisions cited in the brief filed here. It is not true of the writing in this case. As the Court of Appeals pointed out, this writing more resembles a bill of exchange than anything else. Appellant does not rely upon it as such an instrument, and could not (Adams v. Darby Barksdale, 28 Mo. l.c. 165) even if the liability of the drawer of such a bill, after the drawee's failure to pay, arises out of the bill rather than the original indebtedness, if such there was. There is no promise to pay expressed in the writing and no facts stated which give rise to an implication of any such promise. The reasoning of the Court of Appeals on this point is sound. There is nothing in Knisely v. Leathe, 256 Mo. 341, which is out of accord with this conclusion. In that case there was an express promise to pay, on condition. The question in that case is like that upon an insurance policy. As the Court of Appeals held, the writing in this case is not one "for the payment of money" in the sense of the statute as consistently construed by this court.

The judgment of the circuit court is affirmed. All concur.