
    Christian Meyer, Respondent, v. Henry A. Fette et al., Appellants.
    1. The allegation in a petition upon a promissory note, that the defendants being indebted to plaintiff executed to him their note, describing it, is a sufficient averment of the delivery of such note.
    
      Appeal from St. Louis Court of Common Pleas.
    
    The facts are stated in the opinion of the court.
    
      II. N. Hart Sf Me Gibbon, for appellants.
    I. The petition does not aver the fact of delivery, either expressly or by fair implication. In an action on a note, an express assumpsit must be alleged. .Merely reciting the note in hcec verba is not sufficient. (Cook v. Simmons, 2 Call. R. 39.)
    
      Voullaire, for respondent.
   Bates, Judge,

delivered the opinion of the court.

The cause was heretofore submitted to the court, and an opinion prepared therein which was never delivered. The parties now consent that that opinion shall stand as the opinion of the present court. It is therefore adopted, and in accordance therewith the judgment below is affirmed, with ten per cent, damages ;

all the judges concurring.

Ewing, Judge.

This was an action on a negotiable promissory note. Defendants demurred to the petition, assigning as a cause that it averred no delivery of the note. Demurrer overruled and judgment for plaintiff. The petition alleges that defendants being indebted to plaintiff, executed to him their certain promissory note, dated, &c., promising to pay to the order of plaintiff, three months after the date thereof, the sum of eleven hundred dollars, for value received, negotiable and payable without defalcation and discount; that on the day of the date of said note, and before the same was delivered to or accepted by plaintiff, the other defendant, Rowe, endorsed his name on the back of said note, and thereby then and there the said Rowe became and is now a joint maker with said other defendants, Fetto & Brother, on said note. It then concludes with the usual averments. There is obviously no force in the objection to the petition. The fact of the delivery appears from the averments of the petition by the clearest implication, and this is sufficient.

Judgment affirmed, with ten per cent, damages.  