« ΠροηγούμενηΣυνέχεια »
above contract and of one dollar to us paid, we do hereby, jointly and severally, promise and bind ourselves, to and with the said Edward Murray, that the said Whiting Weeks shall and will well and faithfully and punctually perform the within contract, on his part, in all respects, and pay the moneys as therein specified.
Given under our hands and seals, this 3d day of July, 1850.
MARIUS SCHOONMAKER, (L. s.]
[L. S.] CHARLES DUBOIS. [L. S.]
That this plaintiff afterwards fully performed the said contract on his part, and that the same was fully completed on the 4th day of May, in the year 1852, and on that day he was entitled to have and receive from the said defendant, Whiting Weeks, and the said defendants, Marius Schoonmaker, Joseph S. Smith and Charles Dubois, upon the said contract, for the said work, a large sum of money, viz., the sum of $5,228.
That the said defendants have wholly failed to perform the said contract on their parts, and have wholly neglected and refused to pay the said sum of $5,228, as by the terms of the said contract they agreed to do, although often requested so to do by the said plaintiff, and are now indebted to the said plaintiff, upon the said contract, in the sum aforesaid, with interest from the 4th day of May, 1852.
The language of the Code, which permits the performance of conditions precedent to be generally pleaded, is, "the party duly performed all the conditions on his part,” ( sec. 162); and this language should, in strictness, be used. Perhaps the above expression may be equivalent; no point, however, was raised upon it on the argument. Wherefore the said plaintiff demands judgment against the said defendants for the said sum of $5,228, with interest, besides costs. 1
JOHN VAN BUREN,
On demurrer to the foregoing complaint for the improper joinder of the three defendants, liable on the guaranty, with the original, contractor, Justice HARRI8, following the decision in Enos o. Thomas (4 How. Pr. R., 48), considered the demurrer not well taken ; and this decision was affirmed by the General Term of the third district on appeal. (See this subject discussed, and authorities cited, Pleadings, 170, 171 and note.) As the question has been the subject of some conflicting opinions, and as the decision above referred to ought not to be regarded as going to the extent of holding that a mere guarantor can be sued with the principal contractor in all cases under the provisions of section 120 of the Code, I subjoin a brief statement of the points (prepared by the author for the argument on behalf of the plaintiff), and of the cases cited in their support. The question was raised on a demurrer put in by the three defendants who made the guaranty.
I. If the cause of action can be regarded as brought on the guarantee alone, then the defendants making the guarantee cannot demur for the improper joinder of a fourth defendant. Such objection can only be taken by the defendant improperly joined. (Brownson v. Gifford, 8 How., 392; Betts v. Genung, 5 Paige, 254; Whitbeck v. Edgar, 2 Barb. Ch. R., 206.) And it has even been held, under the Code, that an improper joinder, that is, a joinder of too many parties, defendants, is not a ground of demurrer at all. (Gregory v. Oaksmith, 12 How., 134; Churchill v. Trapp, 3 Abbott, 306 ; Peabody v. Washington County Mutual Insurance Company, 20 Barb., 340 ; see, also, Brimskill v. Jones, 1 Kernan, 294.)
II. If it be held that the cause of action be not on the guarantee alone, but on the agreements of all the defendants, then it is argued that the contract and guarantee constitute but a single instrument, and by section 120 of the Code the action may be brought against all or any of the parties. (Enos v. Thomas, 4 How., 48, and cases there cited; Union Bank v. Costar's Executors, 3 Comst., 204, and
(7.) IN ACTIONS TO RECOVER ON ACCOUNTS OR CLAIMS FOR
Goods SOLD, WORK, ETC., UNDER SECTION 158 OF THE CODE. AND GENERALLY IN CASES WHERE THE COMMON COUNTS WERE HERETOFORE USED.'
On an account for goods sold and delivered.?
Title of the Cause.
The plaintiffs complain against the defendants :
That the defendant is indebted to the plaintiffs, in the sum of $371.01, for goods sold and delivered by the
cases there cited; Manrow o. Durham, 3 Hill, 584; affirmed, 2 Comst., 534; Legget d. Raymond, 6 Hill, 639.)
In support of the demurrer, the defendants' counsel cited Brewster o. Silence (11 Barb., 144; 4 Selden, 207); De Ridder v. Schermerhorn (10 Barb., 639); Morehouse's Executors v. Ballou (16 Barb., 289); Hall v. Farmer & Doolittle(5 Denio, 548; affirmed, 2 Comst., 553); Le Roy v. Shaw (2 Duer, 627).
· The old common counts were used in actions to recover for goods sold and delivered, or for goods bargained and sold; for work and labor done; for money had and received to the plaintiff's use; for money paid, laid out and expended for the defendant; for money lent; for use and occupation, &c. (See remarks on this subject, and how far common counts may be used in pleading under the Code, Pleadings, 254-266.)
% This is the complaint in the case of Allen v. Patterson (3 Selden, 476), which the Court of Appeals held to be sufficient as a pleading under the Code. It should be recollected, however, that the question, as presented to the Court of Appeals, arose on a demurrer; and it has been held, both before and since that decision, that a pleading might be adjudged good, on demurrer, which might very properly have been held insufficient on a motion to make it more definite and certain. In Cheesborough v. New-York and Erie Railroad Company (13 How., 558), Justice PEABODY, criticising this complaint, very properly remarks plaintiffs to the defendant, at his request, on the 1st day of May, 1849, at the city of Buffalo, in said county.
And the plaintiffs say that the items in their account exceeded twenty in number.'
And the plaintiffs say that there is now due to them, from the defendant, the sum of $371.01, for which sum the plaintiffs demand judgment against the defendant, with interest from the 20th day of October, 1849, besides costs.
that the pleading would have been more complete if it had stated whether the price claimed was fixed by contract between the parties, or, in the absence of a contract, was claimed as the value of the goods. This, however, he thinks is done in effect, for no contract as to price is alleged, and the claim of that sum as the price or sum due for them, without stating that there was a contract for it, is, in effect, claiming it as the value, and not the contract price of them. It may be added that the pleading in the case referred to (Allen v. Patterson) could, no doubt, be improved in other particulars, as by alleging affirmatively the sale and delivery of the goods, &c., and generally the kind and description of goods, so as to indentify the demand; as in the next precedent, No. 32.
| This is altogether unnecessary. By the original Code the items of an account were not required to be set out, where they exceeded twenty in number. But by the amendment of the next year, and as the Code now stands, it is unnecessary to set out the items of an account in any case. Still, where there are but few items, and it can conveniently be done, it will be as well to set them forth, as in No. 43, post, in order to save the trouble of subsequently furnishing a bill of particulars or copy of the account.
Another form for goods sold and delivered.
Title of the Cause.
The plaintiff complains of the defendant:
That on the 1st day of May, 1849, at the city of Buffalo, he sold and delivered to the defendant goods and merchandise, consisting of various items of hardware, the prices of which were fixed and agreed upon at the sale, by and between the plantiff and defendant, amounting in the whole to the sum of $— [or, if it be preferred, “the items of which, and prices agreed upon between the plaintiff and defendant, are set forth in the bill thereof, hereto annexed ;”? or, if
· Notwithstanding the case of Allen v. Patterson, it seems to be necessary still, or, if not absolutely necessary, it is always proper and prudent, to state in this general way the nature of the claim, in order to avoid a motion by the defendant to make it more definite and certain. In the case of Lord v. Cheesborough (13 How., 558), referred to in the preceding note, it was held, on a motion to make the complaint more certain, that a complaint was defective in which the plaintiffmerely alleged that at the defendant's request he “ rendered other services, as agent, for which he is entitled to have, as a fair reward, $50," or in which the allegation was general, " for work, labor and services done, and materials furnished by plaintiff,” without specifying what work, when and where done, &c.
It is undoubtedly a correct rule to adopt, in this and similar cases, that the demand should be so far identified as to distinguish it from every other demand of like nature. That it should be so described as to be generally known wherever it makes its appearance, so that, upon a recovery thereon, enough should appear in the complaint to constitute a sufficient bar to any other suit to enforce the same demand. (See Pleadings, 233, 234, 266.)
? If the items are not set forth in the complaint, the defendant is always enabled to obtain them by demanding a copy of the account or bill of particulars.