Hatch v. Peet

By the Court, T. R. Strong, J. The performance of the several acts specified in the condition of the bond to be performed, by the persons therein named, was a condition precedent to a right of action on the bond, against the defendants ; and consequently essential to be stated in the complaint to disclose a cause of action. . By section 162 of the code, a simple and easy mode of stating performance in such cases is furnished ; it being declared by the section, that “ in pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial" the facts showing such performance.” That provision was either overlooked by the plaintiff’s attorney, or he did not de-' sire the aid of it, in framing the complaint"in this case, as the complaint does not contain such a statement or allegation, and hence the sufficiency of the complaint, on demurrer, must be [581] determined independent of it. The allegations of performance state the doing of the acts to be done, in the precise language of the condition of the bond, and some of them, as for instance, that in relation to the execution of a release of actions, and that relating to a discontinuance of suits, involve matter of law to such extent that, according to the rules of pleading in such cases before the code, they would be bad on special demurrer. It is alleged that the parties who were to do so, “ did execute a release of all actions,” &c. without stating whether by an instrument under seal, or in what manner, so as to enable the court to judge whether it is a valid release. Chitty says, (1 Chit. Pl. 283, ed. of 1828,) “ performance ought to be shown with such certainty that the court may judge whether the intent of the covenant has been duly fulfilled, as in consideration that the plaintiff would acquit A. of a debt, it is not sufficient to say that he acquitted him, without showing how, as by deed,” referring to Leneret v. Rivet, (Cro. Jac. 503 ;) Com. Dig. tit. Pleader C, 60; Cro. Eliz. 914; Sir T. Jones, 125. The doctrine stated by Chitty is fully supported by those authorities. The allegation as to the discontinuance of suits is, that all suits, &c. “ were discontinued, each party paying his own costs, as in the condition of said bond stipulated,” not stating what was done for the purpose of a discontinuance, so that the court may see the object was effected. The entry of an order of discontinuance with the clerk was necessary. (Averill v. Patterson, 10 How. Pr. R. 85.) That the allegations of performance particularly specified, at least, are bad on special demurrer under the former rules of pleading, I also refer to Thomas v. Van Ness, (4 Wend. 549;) Glover v. Tuck, (24 id. 153.) Those rules, respecting the mode of setting forth the performance of conditions precedent, were not, I think, intended to be substantially changed by the code. There is nothing in the sections as to the contents of a complaint, or of an answer, inconsistent v/ith them; on the contrary, these sections substantially adopt them, by prescribing for a complaint a plain and concise statement of the facts constituting a cause of action, and that new matter in an answer be stated in ordinary and concise language. [582] The whole spirit and policy of the code accord with those rules, which are highly salutary, and indispensable to a wise and just system of pleading. Facts showing performance are to be stated, not circumstances which are mere evidence, nor mere legal conclusions. But whether the remedy under the code for a defective allegation of performance—-not an omission of the allegation—by being too general or too circumstantial, is only by motion under section 160 of the code to strike out for redundancy, or that the pleading be made definite and certain by amendment, or sometimes by demurrer, and when a demurrer will lie for such a defect, if at all, are questions not perhaps free from difficulty. In Richards v. Edick, (17 Barb. 260,) Gridley, J., says, “defects merely formal, and which under the former practice were appropriate subjects of a special demurrer, cannot now be reached and corrected by this form of proceeding and again, “the counts of the complaint to be overthrown by the demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever.” (See Swift v. Dewitt, 3 How. Pr. Rep. 280; Smith v. Brown, 17 Barb. 431; Van Schaick v. Winne, 16 id. 90 ; Smith v. Lockwood, 13 id. 209 ; The People v. Ryder, 2 Kernan, 433; Hall v. Taylor, 8 How. Pr. Rep. 428.) Where there is too great minuteness and detail, and in some cases where facts and law are blended, probably the remedy is to be sought under section 160 of the code; when the allegation is of a mere legal conclusion, the remedy may perhaps be by demurrer. An answer that a plaintiff is not the legal owner and holder of a note sued upon, is insufficient to warrant evidence under it, and is of course bad on demurrer, as stating a mere legal conclusion. (See Seeley v. Engell, 17 Barb. 530; Thomas v. Desmond, 12 How. Pr. Rep. 321; Brown v. Ryckman, id. 313.) So also, for the same reason, it was held by the supreme court, in Seeley v. Engell, that an answer that a note was given by mistake for a greater sum than was due, &c. to wit, a sum sufficient to cancel the balance claimed to be due on the note, &c. was insufficient to admit evidence [583] under it; but this latter ruling has very properly been reversed by the court of appeals. The defect, if any, was not a statement of a legal conclusion, but a too general statement of a fact, and the remedy was by motion under section 160 of the' code. The principle of these cases is applicable to like defects in a complaint. An allegation of a legal conclusion merely, is one which gives no fact, but matter of law only. It is not easy always, in practice, however, to determine what allegations are of that character, on account of the difficulty in deciding when facts will be held to be implied from, and therefore embraced in, an allegation in pleading. The allegation in this case, that suits “were discontinued,” would seem to be as naked of facts as the allegation of ownership of a note, or demand, in the cases cited. But it is not necessary, in the view which I take of this case, to decide whether the complaint is demurrable on account of any such defects as have been suggested, as I think the complaint is bad, for not showing, in any manner, performance of one of the stipulations forming a condition precedent, in the bond. That stipulation is, that “ all suits in the supreme court, and in the county court of Monroe county, are to be discontinued, each party paying his own costs—meaning three ejectment suits in the name of Polly M. Hatch, in the supreme court; one against Norman Peet, one against Nelson Peet, and one against Silas Dunham and others; and five suits in the county court, three in the name of Polly M. Hatch, and two in the name of Elmore A. Hatch.” The allegation of performance is, that “ all suits in the supreme court, and in the county court of Monroe county, were discontinued, each party paying his own costs, as in the condition of said bond stipulated, meaning three ejectment suits in the name of Polly M. Hatch, in the supreme court, against Nelson Peet, and one against Silas Dun-ham and others; and five suits in the county court, three in the name of Polly M. Hatch, and two in the name of Elmore A. Hatch.” Nothing is said in this latter allegation about the suit against Norman Peet, mentioned in the stipulation, and it does not appear in any way to have been discontinued. The [584] general averment that all suits, &c. were discontinued, is expressly limited, by what follows, to the suits particularly specified, in which the suit against Norman Peet is not included. The latter clause of the sentence explains and restricts the former part. Probably the explanation was unnecessary, but having been made, and the general allegation being qualified by it, it cannot be treated and rejected as surplusage. [Monroe General Term, March 2, 1857. Other questions raised on the demurrer need not be examined. I think that for the defect in the complaint last above specified, the complaint does not show a cause of action, and that the order appealed from should be reversed with costs, and the demurrer sustained, with leave to the plaintiff to amend, on payment of costs. T. R. Strong, Welles and Smith, Justices.]