Opinion of the Court- delivered by
Tompkins Judge.Blue sued Austin and Haines by Petition in debt, on the following note: Oct. 15,1836. Twenty four months after date, we promise to pay William Muldrow or order seven hundred dollars for value received without defalcation, John W. Austin Sidney P. Haines.
This note was assigned to plaintiff. The defendants plead 1st, nil debit. 2nd, no assignment. 3rd. fraud in obtaining the note, by the assignor. 4th, a special plea of fraud. 5th. Total failure of consideration, and 6th, no consideration. 'The plaintiff took issue on the first and second pleas, and demurred to the remainder, and the demurrer was sustained by the court.- The issues were found for plaintiff and he had judgment. The only question before this court arises on the.demurrer. If the note sued on be not a negotiable note, within the meaning of the 6th section of our statute, the demurrer was improperly sustained. In the act concerning bonds and notes, found at page 104, of the digest of 1835, the legislature have defined, what shall, in Missouri, be negotiable paper; in the 6th section of that act, they say, that every promisf ory note for the payment of money, expressed on the face thereof to be for “value received” negotiable and payable “without defalcation,” shall be due and payable as therein expressed, and shall have the same effect, and be neggotiable in like manner, as m inland bills of exchange. It is to be remarked that the words “or order,” are not to be found in this section. By the law merchant those words, or others equivalent, are necessary to make promissory notes negotiable.
The words, negotiable and payable without defalcation, inform the holder, notwithstanding the maker may *267have paid the payee, as in cases of inland bills of exchange. This note then not being negotiable under our act, the maker has the same defence against the holder which he could have had against the payee. The circuit court then committed error in sustaining the demurrer to the pleas of the defendant, and its judgment is therefore reversed,