No. 144.

vi. Against Factor, for Price of Goods Sold on Credit. [TITLE.]

The plaintiff complains, and alleges:

187., the plaintiff

I. That on the ...... day of ... employed the defendant to sell certain goods and merchandise, of the value of ...... dollars, upon commission, and delivered the same to the defendant, who then promised to sell them, and be responsible to the plaintiff for the price thereof.

day of

II. That on the . 187., as the plaintiff is informed and believes, the defendant sold said goods and merchandise for the sum of ...... dollars, on a credit of ...... months from that date, which credit expired before the commencement of this action.

III. That the commission and expenses of the defendant thereon amount to ..... dollars.

IV. That plaintiff further alleges, on information and belief, that the sum of ... ... dollars is the price of said goods and merchandise, after deducting said charges.

.........

187., at

V. That on the ...... day of the plaintiff demanded of the defendant payment of the said sum of ..... dollars.

VI. That he has not paid the same.

[Demand of Judgment.]

35. Default of Purchaser.-It is unnecessary for the plaintiff to aver that the purchaser was in default, nor is it necessary to aver a demand on him, though it might be otherwise if the factors guarantied the payment of a price to be collected by the principal: 1 Pars. on Cont. 78; Milliken v. Byerly, 6 How. Pr. 214.

36. Demand. The rule is settled in New York, that a foreign factor is not liable to an action for the proceeds of sales made by him for account of his principal on commission, until a demand made by the principal, or in-. structions to remit: Walden v. Crafts, 2 Abb. Pr. 301; Halden v. Crafts, 4 E. D. Smith, 490; Ferris v. Paris, 10 Johns. 285; Lillie v. Hoyt, 5 Hill, 395.

No. 145.

vii. Against Broker for Proceeds of Note Discounted. [TITLE.]

The plaintiff complains, and alleges:

I. That on the ...... day of ....

187., at ....

the plaintiff employed the defendant to negotiate a promissory note, the property of the plaintiff, made by one A. B.

[describe the note], and thereupon he delivered the same. to the defendant, who undertook to negotiate the same for a reasonable commission, and to pay the proceeds over to the plaintiff.

II. The plaintiff further alleges, on information and belief, that on the ...... day of ... 187., the defendant procured said note to be discounted at the ....... Bank, and received as the proceeds thereof the sum of

dollars.

III. That the commission and expenses of the defendant thereon amount to ....

IV. That on the....day of........, 187., at...

the plaintiff demanded of the defendant..... .dollars, the balance of the proceeds of said note after deducting said expenses and commission.

V. That he has not paid the same.

[Demand of Judgment.]

37. Unauthorized Sale.-For selling without authority stock which the broker had purchased for the plaintiff, if this fact be shown in the complaint, and that it was to be delivered to him within a specified time at his option, but that he sold it meanwhile against his express instructions, a demand and tender on the part of the plaintiff need not be alleged: Clark v. Meigs, 13 Abb. Pr. 467.

he

.........

I. That on the... . day of........, 187., at.... lent to the defendant.... .dollars.

II. That the defendant has not paid the same. Wherefore the plaintiff demands judgment for... dollars, with interest from the.... day of....... 187..

1. Averments.—Every material fact must be alleged with certainty; and all those facts which are necessary to distinguish the transaction in question from every other like transaction are material. These details are often im

1

material, in the sense that no issue can be made upon them, yet are material as matter of description. For instance: if to the plaintiff's allegation that "at San Francisco, he lent," etc., the defendant should answer that he never borrowed any money from the plaintiff at San Francisco, the answer would be frivolous. Time is not ordinarily material, except the order of occurrences, and to fix the date when interest began. When no time is fixed for the repayment of the loan, the presumption is that it was to be paid immediately: Peets v. Bratt, 6 Barb. 662. Nor is it necessary to show that the debt had become payable at the commencement of the action, as that is matter of defense to be set up in the answer: Smith v. Holmes, 19 N. Y. 271; Maynard v. Talcott, 11 Barb. 569. But whenever time is material, as in case of demand and notice to charge an indorser, it must be directly and truly stated: Castro v. Wetmore, 16 Cal. 379.

2. At his Request.-This may be omitted, upon the authority of the case of Victors v. Davis, 1 Dowl. & L. 984. Although it is necessary to prove a request in order to constitute a loan: See Brown v. Garnier, 6 Taunt. 389. But, in general, a request in such case will be implied: See Victors v. Davis, 1 Dowl. & L. 984; see, also, in this connection, Brown v. Garnier, 6 Taunt. 389; S. C. 1 Eng. Com. L. R. 421, where it was held that "hired" implies a request. Where a special request is necessary to be averred, the general allegation of "though often requested" is not sufficient: Bush v. Stevens, 24 Wend. 256; Whitton v. Whitton, 38 N. H. 127. The defect, however, is cured by verdict: Leffingwell v. White, 1 Johns. Cas. 99.

3. Debt, how Contracted. In an action to recover money loaned, if the complaint charges the indebtedness, the manner in which it accrued, the promise to pay, and the refusal, it is sufficient: Williams v. Glasgow, 1 Nev. 533.

4. Debt, when Due.-It is not necessary to state when the debt was to be repaid, except for the purpose of fixing a date for interest. The presumption of law is, that it was to be paid immediately: Peets v. Bratt, 6 Barb. 662. Nor is it necessary to show that the debt was due at the commencement of the action. If it was not, that is matter of defense, to be set up in the answer: Smith v. Holmes, 19 N. Y. 271.

5. Demand. Where the count, in an action for money lent and advanced, sets forth a demand for a certain sum, and the jury find a verdict for a larger sum, it is not erroneous, if the declaration covered the larger sum in the ad damnum: Mill v. Bank of the United States, 11 Wheat. 431, at p. 440.

6. Non-Payment.-It may be doubted whether the allegation of nonpayment is necessary: See Lanning v. Carpenter, 20 N. Y. 458; McKyring v. Bull, 16 Id. 297.

7. Payments Made on Account.-The plaintiff need not state payments made on account, as this is matter of defense. But where the complaint is verified, there is a necessity to do so; and in such case he should briefly state what amount has been paid: Van Demark v. Van Demark, 13 How. Pr. 372; Giles v. Betz, 15 Abb. Pr. 285. As any payments must be pleaded, it is certain that the most general form of averring non-payment is sufficient. It is not necessary to add "or any part thereof." Although not necessary, it is highly proper to credit the defendant with any payments.

8. What must be Shown.-The declaration set out a draft drawn by defendants on a house in Boston, which it avers was drawn with the understanding that plaintiff should pay the same, but did not aver that after paying the draft, he canceled it, and delivered it up to the defendant: Held, that the defects were fatal in this form of action: Lambert v. Slade, 3 Cal. 330.

[TITLE.]

No. 147.

ii. The Same, no Time for Payment Agreed on.

The plaintiff complains, and alleges:

I. That on the .... day of

187., he loaned

the defendant, for his accommodation, and at his request, and without any time being agreed on for repayment, the sum of .......... dollars.

II. That he has demanded payment of the same, but the defendant has not paid said sum of ...

any part thereof.

dollars, nor

[Demand of Judgment.]

No. 148.

the defendant was indebted to one A. B., in the sum of

.. dollars, on an account for

A. B. to the defendant.

II. That on the .... day of

money lent by said

the said A. B. assigned said indebtedness to the plaintiff, of which assignment defendant had due notice. III. That he has not paid the same.

[Demand of Judgment.]

9. Form of Action.-This form of complaint should only be employed in cases where the items of the claim are embraced in an account: Allen v. Patterson, 7 N. Y. 476. For authorities in support of the above form, consult Freeborn v. Glazier, 10 Cal. 337; De Witt v. Porter, 13 Id. 171; Beekman v. Platner, 15 Barb. 550; Second Avenue R. R. Co. v. Coleman, 24 Barb. 300. 10. Where Suit is not on an Account.-Where the action is not on an account, this complaint may be obnoxious to a motion to make it more definite and certain, if defendant is prejudiced by its want of particularity: Eno v. Woodward, 4 N. Y. 249; see, also, How. Pr. 78; Chesborough v. N. Y. and Erie R. R. Co., 13 Id. 557; Hall v. Southmayd, 15 Barb. 32. But not necessarily so: Adams v. Holley, 12 How, Pr. 326.

11. When Action Lies.--Where money was borrowed by an executor, without authority, and the estate had received the benefit of it, the creditor may recover the amount loaned from the estate with interest: Deery v. Hamil ton, 41 Iowa, 16. For case depending on other facts, see Currier v. Davis, 111 Mass. 480; Marston v. Boynton, 6 Met. (Mass.) 127.

No. 149.

iv. Partners Lenders, against Partners Borrowers.

[TITLE.]

A. B. and C. D., the plaintiffs, complain of E. F. and G. H., the defendants, and allege:

I. [Allege partnership as in Form 69.]

II. That on the .... day of........, 187., at

the plaintiffs loaned to the defendants the sum of five hundred dollars, on condition that it should be repaid on demand, with interest from that date, at

per month.

per cent.

III. That plaintiffs have demanded payment thereof. IV. That defendants, or either of them, have not paid said sum, and the interest, or any part thereof.

Second. And for a second cause of action, the said plaintiffs allege:

..........

187., at

I. That on the ... day of.... the plaintiffs, at the special instance and request of the said defendants, paid, laid out, and expended for the said defendants, and to and for their use and benefit, the sum of five hundred dollars; in consideration whereof, the said defendants promised the said plaintiffs to pay unto the said plaintiffs the sum of five hundred dollars on demand, together with interest thereon.

II. That on the .... day of........, 187., at the plaintiffs demanded payment thereof.

....

V. That defendants, or either of them, have not paid the same, the interest, or any part thereof; except, etc. [State briefly the total payments.]

[Demand of Judgment.]