Winters v. Rush, Cal., Judgment, Law, casemine.com

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Wm. S. Wells, for Appellant, argued that the demurrer should have been sustained on the first ground, because the plaintiff is not the real party in interest, but is but the agent of the " Pacific Methodist College; " upon the third ground, because there is no consideration expressed in the note or alleged in complaint. That the instrument sued on seems to be an executory contract rather than a note. That the endowment of a literary institute is not a sufficient consideration to uphold a subscription to a fund designed for that object; and cited Hamilton College v. Stewart , 2 Denio, 403; 1 Comst. 581; Limerick Academy v. E. Davis , 9 Mass. 112. [No brief on file for Respondent.]

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W. M. WINTERS, Agent of the Pacific Methodist College v. HIRAM RUSH

JUDGES: Sanderson, J. Mr. Justice Shafter expressed no opinion.

OPINION

SANDERSON, Judge

The action was properly brought in the name of Winters. The note is payable to him for the benefit of the Pacific Methodist College. Winters is therefore the trustee of an express trust within the meaning of the sixth section of the Practice Act, and as such entitled to sue upon the note. (Considerant v. Brisbane , 22 N.Y. 389.)

A promissory note imports a consideration, and therefore it is not necessary that a consideration should be specially alleged. If there was no consideration the defendant should have filed an answer setting up a want of it as a defence to the action.

Judgment affirmed.

Winters v. Rush

W. M. WINTERS, Agent of the Pacific Methodist College v. HIRAM RUSH

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