Glover v. Tuck

*By the Court, Cowen. J. There is not the least question that this [ *158 ] action is well founded in principle. The objection that the articles — 158 — of agreement between the plaintiff and defendants constituted a partnership, in consequence of which the plaintiff’s remedy lies in a court of equity only, is thus answered by Collyer on Partnership, 132, Am. ed. 1839: “ One partner may maintain an action of covenant against his co-partner, whether the covenant be to pay any sum, or do any act for the purpose of only launching the partnership, or whether it be to perform any of the articles after the partnership has commenced. An action of covenant will lie, although there may be accounts between the -parties which require unravelling in equity. And where the partnership covenants have not been infringed for any length of time, the action of covenant is the proper remedy ; a court of equity not interfering to restrain the breach of covenant, unless the bill pray, and there are just grounds for a dissolution.” I have examined the leading cases cited by him, and find that his doctrine is clearly sustained by the English authorities; and there is no case in this state, I apprehend, which trenches upon it in the least. Niven v. Spickerman, 12 Johns. R. 401, is relied on; but that appears to be an action of covenant for a general balance of account, after the partnership had been in operation some two years. I do not perceive that there was a covenant to pay any balance ; but the action seems to have been brought on a notion that it would lie, merely because the articles which formed the partnership were under seal. Where, as in the case before us, the covenant is to make specific advances for the purpose of launching the partnership, I presume the right to an action was never questioned. See Townsend v. Goewey, 19 Wendell, 424. Several American cases cited in the same edition of Collyer, appear to concede the rule as laid down by him in its full latitude. Mr. Chitty, 2 Chit. Pl. 524, ed. of 1828, gives a precedent in covenant on articles, which supposses the partnership to have been some time carried on ; though he suggests that on a covenant to account, the plaintiff must encounter the inconvenience of being confined [ *159 ] to nominal damages. '^Therefore, if there has been no balance struck, he must resort to equity for his share of the profits. The following cases, not cited in Collyer at the page mentioned, will also be found to bear in favor of the plaintiff: Owston v. Ogle, 13 East, 537; Musier v. Trumpbour, 5 Wendell, 274. Several cases cited by me - in Townsend v. Goewey, 19 Wendell, 429. Bradenhurst v. Bates, 11 Moore, 421; 3 Bing. 463, S. C. The substance of the agreement by the defendants here was, that they would enter into partnership with the plaintiff, retaining him as agent and superintendent in the adventure, and furnishing him with such funds as might be necessary for launching and prosecuting the business. The extent of the advances were, for the purposes of his declaration at least, limited to the acceptances of drafts or bills on them, to be made from time to time, as the — 159 — plaintiff’s contracts and the execution of the proposed plan might require, to an amount not exceeding $8000, to the defraying of his necessary expenses, and the advance of his proportion of the common outlay, on certain terms. The plaintiff covenanted immediately to proceed in his duties, and devote himself exclusively to the performance of them. He avers that, in pursuance of the agreement, he abandoned his other business ; and although he had performed and fulfilled, and had always, from the time of the execution of the agreement, been ready and willing, and had offered to perform and fulfil the covenants and agreements on his side, and had in this expended $2000, the defendants would not, although often requested, &c. in any manner perform—would not pay any proportion of the needful expense in erecting the mill nor for the fixtures, nor honor the drafts, though the plaintiff’s contracts and the execution of the plan required them to be honored, and though he caused certain described drafts to be presented. Hor would they defray the plaintiff’s necessary expenses, nor advance his share of the out-lay. The mill or any part of it was never erected, nor did any one, so far as we learn from the declaration, ever take any definite step in the progress of the concern. It is quite obvious that the liability of the defendant to any extent, depended on conditions prescribed in the agreement, *to be perform- [ *160 ] ed by the plaintiff. He is, therefore, bound to show, in proper form, the actual fulfilment of those conditions ; or some excuse why they have not been fulfilled. As to the acceptance of bills, the amount was to depend on the plaintiff’s contracts and the exigencies of the work in its progress. How the plaintiff does not show that he ever entered upon the plan, so far as to make contracts, or that he did any other act by which liabilities were incurred. I think it was necessary for him to set forth the facts specifically, upon which he bases his claim to acceptances, such as that he had contracted for an engine, or fixtures, or had demanded an acceptance for the purpose of purchasing them, which had been refused. This being so, it was necessary, not merely that drafts should be presented under the notion of general necessity ; but the defendants should have been advised of the particular purpose. It was, therefore, necessary to aver farther, that special notice was given of the purpose. We want to know the exigencies of the business, and what these were. . Again :. the complaint is, that they would not employ the plaintiff, or receive him into their service, though he had performed, and was always ready to perform. But what specific act of performance is averred ? Hone. What was the offer ? Did he tender himself, declare his readiness, and meet with a refusal ? He does not say that he ever even requested the defendants to employ him pursuant to their covenant. But he avers that he offered to perform his covenants and agreements. Assume that this offer — 160 — was made to the defendants, and is a sufficient allegation of notice ; did they refuse to employ him, or obstruct his going op with the adventure ? It is not said they refused to permit him to proceed. But it is said generally the defendants would not perform ; adding that they refused to do certain specific things which clearly we cannot hold they rvere bound to do, till we see the plaintiff had done more than to make his general offer. It is quite well established, that where a specific act is to be [ *161 ] done by the plaintiff, or any number of acts by way of ‘condition precedent, he must shew in pleading precisely what he has done by way of performing them. 1 Chit. Pl. 278, ed. of 1828. Id. 282. If a deed is to be given, or money to be paid, or services to be peformed, he must either aver in so many words, that the deed has been given, the payment made, or work done ; or that each by name was tendered and refused, with such circumstances as are material in point of law to raise the corresponding obligation. Id. 282, 3, 4. And so of like instances. Mansel on Demurrer, 51, 2. This' enables the court to see whether the defendants be in fault; and presents matter on which he can take a definite issue. Thomas v. Van Ness, 4 Wendell, 449, 552, 3. The allegation of performing every thing, or offering to perform every thing, involves in itself many possible acts of performance, and invites an issue on all ¡ of them. It cannot be seen on what the parties go down to trial. Indeed the plaintiff here offers an issue on a double set of possible facts. He says he had performed all, and offered and ivas ready to perform alh And this he contends raised a precedent obligation on the part off the defendants, so as to supersede the necessity of special notice, and make the bringing of a suit sufficient notice. The generality here would be a substantial defect even were it negative, and by'Way of breach, which need never be so special as the averment of a performance intended to satisfy a condition precedent. Barton v. Webb, 8 T. R. 459. Hughes v. Smith, 5 Johns. R. 168. McGeehan v. Bridget, 1 Hall, 33. Post Master General v. Cochran, 2 Johns. 413. Vid. also Mansel on Demurrer, 48, 49, 26, 65, 66. I refer to this author, p. 55 to 58, for illustrations of the rule that you must show the condition well and exactly performed. There is certainly a case mentioned in Mansel, 57, going to show that the plaintiff has very nearly made one sufficient averment. I mean as to his loss of time, being put to inconvenience and incurring expenses. It is the oase of Jermy v. Jenny, T. Raym. 8. Tet in both counts, these are made so much a dependence or consequence of the general performance, or general offer to perform, that they cannot be served, and thus answer [ *162 ] the rule that any part *of the count being good, the demurrer being to the whole, must fail. The substance is, that the plaintiff had necessarily spent $2000, in his acts of general performance and loss of — 162 — time, &c. or by reason of not accepting his general offer. Had the averment been distinct, that the expenses were incurred by doing any act or acts, sufficiently shown to be within the condition, it would, according to Jermy v. Jenny, have been enough, even without a special notice. It would, under the direct covenant to pay necessary expenses, perhaps have raised a duty ; and by the case cited, it need not have been shown more particularly how the expenses arose, or to whom or on what particular occasions it was paid. Vide Barton v. Webb, 8 T. R. 459. I admit the question I am now examining, is one of quo modo merely; nor do I deny the rule insisted on, that where a condition precedent lies by the covenant itself in a definite and certain form, so definite that it need not be made more certain for the purposes of pleading, there it is enough to say generally that the party has performed it according to the intent and meaning of the agreement, if the condition as contained in that, were fully" stated ; and so of any number of acts by way of precedent condition. Wright v. Tuttle, 4 Day, 313. But this is very rarely so. Clearly it is not the case at bar; and one of the very authorities cited by the defendant’s counsel, goes directly to prove, that when a condition relates to some general business, comprehending divers acts, the quo modo must be shown in a plea of performances. Post Master General v. Cochran, 2 Johns. R. 413. Both the counts stand on substantially the same footing, as to substance and form. The second professes to be a summary statement of the agreement according to its legal effect. But the oyer must bo taken as making a part of each count. That being imported into the second, it presents defects of almost literally the same character with those in the first. If there be any difference, it is in the greater meagreness of the second. The averment is simply of a general readiness to perform. Actual performance is not mentioned. But the objection is not to the substance hinted at, for either readiness or performance is enough ; the objec- [ *163 ] tion is, that neither is stated, so that an issue could be framed. We are not told what the plaintiff did by way of performing or attempting to perform. Did he tender himself at a proper time and place ? was he rejected ? Did he go on to Michigan ? Look over the ground ? ascertain the wants of the adventure, and give notice of these when the drafts were sent ? Was he in all this out of pocket, and did he call for reimbursement, giving special notice of the amount, and that it arose in the line of the business ? Was the business so far matured as to call for an advance of his share of the outlay, or indeed for any advance ? and as the agent of the concern, was this fact communicated to the defendants ? at what stage of the matter, in short, and under what circumstances were the defaults complained of on the part of the defendants committed ? The plaintiff was the active man. He was to move, advise, make calls, execute, The objection — 163 — is, that neither all these things nor' any of them are so communicated by a mere hint, thus: “ Although the plaintiff had’performed, or was ready, and the defendants, although often requested, &c. did not and would not do this and that:” To the objection of the want of notice. Perhaps it is truly answered, that. supposing actual performance of any condition precedent to be sufficiently averred, no notice of it need be alleged; that the party undertakes and is bound to notice it at his peril, and the licet scepius requisitas will do. Mansel on Demurrer, 30, 48. 1 Chit. Pl. 286, 287, ed. before cited. But performance in any way is averred by the first count only ; and there the averment is defective as being general. Perhaps it may also be correct to say that the offer to perform, averred both in the first and second counts, would be sufficient as implying special notice. I do not see that this averment is demurred to for its generality. Vide 1 Chit. Pl. 283, 4th ed. before cited. Nor do I think any serious objection can be made, especially to the first count, for generality in the assignment of breaches. So far as mere general non-performance is concerned, the objection is valid. But that [ *164 ] is helped by the *setting forth of several specific breaches with sufficient exactness. The demurrer goes to the whole count, and i is answered by the correct assignment of any single breach, even though there may be several others altogether defective. Mansel on Demurrer, 49. 1 Chit. Pl. 576, 7, ed. before cited. The doctrine is quite familiar as between different counts. Chitty says it is the same as between different divisible allegations in the same count; and if you mean to attack any one of them where the count contains others that are sufficient, you must put your finger on the defective portion. A count may be thus dissevered, and judgment be rendered on one part for the plaintiff and as to another for the defendant, just like a declaration made up of several counts. Benbridge v. Day, 1 Salk. 218. It is quite doubtful, however, whether any one breach is well assigned in the second count. On the whole, because the plaintiff has not shown any such specific steps on his part as to put the defendants in default, judgment must go for them, with leave to amend. Judgment for defendants.