Kern v. Zeigler

JOHNSON, Judge, delivered the opinion of the; Court: The only questions, presented in this case, arise on the demurrer to the declaration, and to each count thereof. Syllabus 1. Syllabus 2. The action is brought in assumpsit, under section 10 of chapter 99 of the Code of 1868, which provides, that “ any action of debt or assumpsit may be maintained on any note or writing, whether sealed or not, by which there is a promise, undertaking- or obligation to pay money, if the. same be^signed by the party, who is to be charged thereby, or his agent. Butin such a case, where there is a count on the sealed instrument, which contains dependent covenants, the same particularity in [713] pleading, is required, as if the declaration was in covenant on such instrument. Objections here are made only to the first and second counts. The third count was by the court, with the consent of the plaintiff, stricken out. No objection is raised to the fourth and fifth counts; and I see none to them ; and the demurrer to them and each of them was properly overruled. It is here objected, that the first count is fatally defective, “ because the allegation of performance of the covenant on the part of the plaintiff is general.” It is insisted, that the declaration on its face should have pointed out specifically the time and manner, in which the plaintiff had performed his covenants. In some of the States it has been held, that an allegation of general performance by the plaintiff is insufficient ; but in England it is held, that such allegation of performance is sufficient. 3 Rob. Prac. 578 and cases cited. Mr. Robinson p. 578, says, “it is not denied in New York, that, when 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 purpose of pleading, then it is enough to say generally, that the party has performed it, according to the intent and meaning of the agreement, if the conditions, 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; 24 Wend. 162. But this it is said by Cowen, Judge, is rarely so.” In New York in a number of cases it has been held, that it is not enough to allege performance generally. In Virginia, as far as I have been able to find, there has been no adjudication of this precise question; and the question has never been passed upon by this Court. While it is a general rule in pleading, that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated, yet there has been much controversy as to the particularity, with which such facts [714] should be stated. It was held in Allison v. Bank, 6 Rand 226, that in an action of debt on a bond, with condition for the faithful discharge of the duties of an officer, the declaration need not set forth the particular persons, from whom money was received, nor the sums received from each, nor the time when the breaches were committed, if it appears they occurred during the continuance of the defendant in office ; nor is it necessary to state the damages occasioned by the breaches. We think even at common law, where the declaration sets forth particularly, what the plaintiff was required to do by the covenant, and those things are matters of fact only, that an allegation in general form, that the plaintiff “ has performed all things by the covenant required of him, according to the tenor and effect thereof,” is sufficient; that in a case of this kind the objection is to the form, and not to the substance, of the declaration. In Varley v. Manton, 9 Bing. 363, it was held, that pleading a general covenant of performance “ according to the provisions of the said agreement ” is sufficent, on general demurrer, although the agreement contains conditions precedent, specific averment of the performance of which would have been indispensible, on special demurrer. Tindal, C. J., said: “We must take the words of the averment of performance, as they would strike any ordinary person. According to the provisions of said agreement, it overrides the whole of the preceding aver-ments ; and it would be a violent construction to confine it to the last member of the sentence. That brings the case within the rule, that where there is a general allegation of performance, if the other party wants a more specific averment, he must demur specially.” Special demurrers were abolished by the Code of 1849, by the following provision: “On a demurrer, (unless it be a plea in abatement,) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or inswffi715 cientpleading, or not, unless there be omitted something, so essential to the action or defense, that judgment ac-' cording to law and the very right of the cause, cannot be given.” This provision has been the law in "Virginia and this State ever since the adoption of the Code of 1849. It has been construed in the following as well as other cases: Smith’s adm’r v. Lloyd’s ex’r, 16 Gratt. 295; Coyle v B. & O. R. R., 11 W. Va. 94. Judge Roane, in Ambler et ux. v. Norton, 4 H. & M. 23 commenting on the provision in the Code of 1803, that declared, that on a general demurrer the court should not regard any defect or imperfection, unless something be omitted so essential, that judgment according to law and the very right of the case could not be given, said: “I am of opinion, that what is substance, or not, is to be determined on every action according to its nature.” In applying the law to each particular case, the court must determine, whether the objection is to the mere form, or to the substance, of the declaration. If it is to the form merely, since the statute abolished special demurrers, the declaration would be held good; but if it is to the substance, and there is omitted something so essential to the action or defense, that judgment according to law and the very right of the case cannot be given, a general demurrer would be sustained. Syllabus 3. It is manifest to me, that the objection to the first count is to the form thereof, and not to the substance. The pleader was required, to show, that the plaintiff had performed, what was required of him, before he could require of the other party to perform his part of the agreement, covenants being dependent. This he has done, by setting out specifically the agreement, and specifically, what it required him to do, and a general allegation, that “he performed and complied with all the several matters and things, by and under the said indenture to be performed and complied with on his part, according to the tenor and effect of the said indenture.” There is certainly nothing omitted here so essential to [716] ^action, that judgment according to law and the very right of the case could not be given, The demurrer to the first count was properly overruled. In the second count there is not even a general allegation of performance, but that he was at Bellaire on the day the contract was to be performed, and was ready and willing to convey, &c., but that he was prevented from so doing by failure of the defendant to be there on that dajo and that the defendant was on that day absent from the State of Ohio, and in the State of "West Virginia, where he resided, &c. Syllabus 4 The covenants, declared on, are clearly dependent; and unless the excuse for not performing is valid, the count is clearly bad. Roach v. Dickinson, 9 Gratt. 154. In Clark v. Franklin, 7 Leigh 7, Tucker, President, said: “Nothing is more true, than that, where a contract is entire, and the covenants are dependent, the plaintiff is in general obliged to aver and prove a complete performance of all that was to be done and performed on his part, before he is entitled to demand payment from the other party. But to this well established rule, there is the equally well established exception, that, where the defendant has prevented a performance by the plaintiff on his part, it is not necessary, that the plaintiff should aver or pi’ove a complete performance, to entitle him to his action. He may recover without doing so ; and it is sufficient to show a readiness to perform, and that he was hindered by the defendant.”. Gas Co. v. Wheeling, 8 W. Va. 369, opinion of Haymond Judge; Smith v. Lewis, 24 Conn. 624; Borden v. Borden, 5 Mass 67; Smith v. Smith, 25 Wend. 405. Syllabus 5. The circumstances surrounding this case show, that it was to performed in Bellaire, in the State of Ohio, where it was made. Pugh v. Cameron’s adm’r, 11 W. Va. 523. It was the duty of the defendant to be at that place, on that day, to accept the deed and wagon, and pay the money, and execute the notes, &e. His absence from [717] the State that day excused the plaintiff from performance of his part of the agreement, if he was then ready and willing to perform. Smith v. Smith, 25 Wend. 404; Tasher v. Bartlett, 5 Cush. 359; Fessard v. Mugnier, 114 Eng. C. L. 284. It was not the duty of the plaintiff, to follow the defendant out of the State, to make a tender of the deed and wagon. The second count is therefore good and the demurrer thereto was properly overruled. The third count being abandoned before the trial, and all the others being good, the demurrer was as to the whole declaration properly overruled. There being no error in the record, the judgment of the court is affirmed with costs and damages. The Other Judges Concurred. JUDGMENT ÁEEIRMED.