A. verdict was found, a judgment entered in the court below, upon a count in debt which recited and treated as a specialty or bond, an instrument of which the following is a copy : “ In consideration of the services rendered, and to be rendered, by Beverly Allen, Esq., in defense of the following suits, before any court in the county of St. Louis — to-wit: Bingham v. Dent, Inhabitants of Carondelet v. Rolan Brown, Same v. Benjamin Allen, and Benoist Manschal v. William Gibson, and in re-establishing the right of the Inhabitants of the town of Carondelet to commons north and south of the river Des Peres — the inhabitants of the town of Carondelet oblige themselves to pay to Beverly Alien the sum of five hundred dollars absolutely, and in case of a final decision on said right to commons north and south of the .river Des Peres favorable to the inhabitants aforesaid, whether by judgment of court or by sanction of the United States, the additional sum of one thousand dollars. In testimony whereof, the hoard of trustees of said corporation have hereunto affixed the common seal of said corporation. Done at Carondelet, this 30th day of March, 1840.
Hos. Paxtpe, Chairman of Board of Trustees [seal.] Of the Inhabitants of Carondelet.”
P. L. McLaughlin, Register.
The declaration contained the usual averment, as to having rendered the future services, according to the tenor and effect of the instrument sued oil. The writ was served upon Peter D. Barada, chairman of the board of trustees of the town, on the 22nd day of January, 1848, and on the 15lh of February following, the case being called in course, and no person appearing for the defendant, a judgment by default was entered, and an inquiry of damages ordered to bo made during the same term. On the 17th of April following, (the February term.still continuing) before proceeding to the inquiry of damages, an ineffectual motion was made to set aside the judgment by default — the affidavit upon which it was founded alleging that “ Barada, late chairman of the board of trustees, who had neglected to attend to the suit, had ceased to he such chairman, that the affiant was his successor, had attended to the suit as soon, as he heard of it, and was advised by eounsd that the town had merits and a just defense to the action.” It may probably be as well to remark here as elsewhere, that if even such an affidavit as this, in the words we have italicised, could be held sufficient on the score of merits, the question of diligence would still be adverse to the corporation, without allowing to it greater indulgence than is usually extended to individuals — so that we see no sufficient reason for revising the discretion of the court in overruling that motion.(ct)
After reading the bond in evidence, the defendant offered to prove that the testator of the plaintiff died before the termination of the suits therein mentioned, and that the same was still pending, to which the court refused permission, on the ground that it would constitute no defense to the action ; and the court thereupon instructed the jury, that the effect of the default, was to admit the rendition^of the services, leaving open for inquiry the question of the amount due, which was nevertheless fixed by the agreement, whether the plaintiff’s intestate conducted the business to a successful termination or not, or whether he lived to have it determined one way or the other ; and that the plaintiffs were entitled to interest on the money payable under the contract from the time they could, find it was vexatiously withheld.
*397As the giving of these instructions were objected and excepted to, and as after refusing to set aside the default they became decisive of the whole case, it is deemed unnecessary to copy or remark upon the antagonistic ones offered by the counsel for the defendants. Supposing, also that the judge’s declension to set aside the default was strengthened, if not prejudiced, somewhat upon the legal perception and conclusion, that the grounds then intimated, and now relied upon, could not change the legal finding of the jury, under the instructions subsequently given them, nothing practically favorable to the defendant could have been gained by more fully opening the case as prayed for. If the instructions were correct, as we think they were, nothing of course but additional credits, which are not pretended to either in the affidavit or the motion, could have produced a finding materially different from the one complained of, for if the damages be excessive at all, they are only so in so trifling a miscalculation of the interest as to disentitle them to be here complained of.
No sufficient reason is perceived, upon which that portion of the paper relied upon in this suit acknowledging an indebtedness of $500 “ absolutely” in contract with another sum which was to be paid conditionally, can be regarded or dealt with as falling in any respect below the grade and dignity of an ordinary specialty, absolute under the common law. To the objection that “no time of payment was fixed,” the answer readily suggests itself that it was due from the moment of its execution ; the law inferring such to have been the understanding and the purpose of the parties. Had it been otherwise intended by the'parties, no other legal inference can be entertained, than that they would have so expressed it, so that if the corporation has really-subjected itself to the payment of the money earlier, or otherwise than it intended to do, (putting in the shape of a retainer what was not so ^designed) its own inconsideration or want of discrimination has been the cause of it. It is not pretended that the person who executed the bond had not the authority to bind the corporation as he did ; the argument, or rather the intimation, that because a corporation can only be bound by its seal, its sealed obligation is therefore to be treated differently from other and similar specialties, being regarded as rather the result of professional zeal than professional reflection. 15 Wend. 256.(a)
Upon the whole "case, therefore, as neither the discretion of the'court below upon the motion to set aside the interlocutory judgment, its subsequent instructions to the jury, nor its final refusal to arrest the judgment which was entered upon their finding, seem to justify or require the interposition of this court, the judgment of the Court of Common Pleas is in all things affirmed.
(a) In an affidavit to set aside a default the affiant must set out the facts constituting a meritorious defense — Barry v. Johnson, 3 Mo. R. 372; Lecompte v. Walsh, 4 Mo. R. 457. And show that the party has used due diligence — Green v. Goodloe, 7 Mo. R. 25. Will not he set aside for the negligence or mistake of an attorney — Ridgley v. Steamboat “Reindeer,” 27 Mo. R. 442; Lamb v. Nelson, 34 Mo. R. 501; Chambers v. Carthall, 35 Mo. R. 374; Bank of Mo. v. Bray, 37 Mo. R. 194.
(b) But see Bulkley v. Briggs, 30 Mo. R. 452; North Mo. R. R. v. Winckler, 35 Mo. R. 13; State v. Hawkins, 28 Mo. R. 366; North Mo. R. R. v. Stephens, 36 Mo. R. 100; Acock v. McBroom, 37 Mo. R. 342.