Bacon v. Page

Swift, Ch. J. The plaintiff should declare on a contract according to its legal effect, and not on the evidence of the contract. The declaration should shew a consideration, a promise, and a breach of promise. In this case, it does not appear from the declaration that the note had become payable. The defendant might have produced a written agreement that it should he paid at some distant time. The legal effect of such note is, that it is payable on demand. The plaintiff should have so declared upon it; and then the note, when produced in evidence, would have proved the fact, unless the defendant could have proved the contrary ; and on such averment the question when the note was payable, would have been put in issue. But now no allegation having been made of the time when the note was payable, no evidence could have been admitted on that point. The plaintiff then has declared not according to the legal effect of his contract, but on the evidence only. He has stated no breach of contract. The declaration, therefore, is insufficient. Such a defect is not aided by default, nor would it have been by verdict. I am of opinion that the judgment ought to be reversed. In this opinion the other Judges severally concurred. Judgment reversed.