Dickey & Co. v. Leonard

Blandford, Justice. The declaration of plaintiffs in error was demurred to as containing no cause of action. The court sustained the demurrer and dismissed the action, and this is excepted to and is the only ground of error. The action is not an action of debt; it is not brought in the debefc or the debtinet. A debt is a sum of money due on a certain and express agreement. Black. Com., 154. There is no certain or express agreement set forth in the declaration. The action is not that of assumpsit. There is no super se assumpsit set forth or alleged. It is true the declaration alleges that the defendant undertook .and [154] promised plaintiffs that the Citizens’ Bank had money in certain banks in New York, and that the drafts which the plaintiffs bought would be promptly paid; but it does not allege that the plaintiffs, relying on this promise and undertaking, were thus induced to part with their money to the bank; so we think that the declaration is bad as an action of assumpsit. But it is said by the counsel for plaintiff in error that the action is for damages on account of the fraud of defendant ; but it is fatally defective in this view, because it nowhere alleges that plaintiff acted and parted with his money by reason of the fraud or fraudulent acts and conduct of the defendant. It is quite manifest that the pleader founded his action upon the fact that the defendant was the assistant cashier of theu Citizens’ Bank;” that the bank was insolvent when they purchased the drafts, and that thereby the assistant cashier was bound in law to know the bank was insolvent, and to communicate that fact to plaintiffs, and having failed to do so, he, the assistant cashier, was liable to them as for a fraud. We do not concur in this view of the counsel tor plaintiff in error; to state the proposition Is to argue it. Judgment affirmed. Hall, Justice, concurred, but furnished no written opinion.