Leas, Harsh & Sinclair v. White

Wright, J. The demurrer should have been sustained. It was complainant’s duty, before respondent wpuld be liable on his contract, to use due diligence to collect the Wheeler note, unless released therefrom by some valid excuse, justifying the non-performance. A mere averment that they “could not, with due diligence, collect said note in one year from said date ” is not Sufficient; but that diligence was used, and what its character, should be clearly stated and shown. Or if it is claimed that they were excused for the non-exercise of diligence, then such excuse should be stated. This seems to have been attempted by the pleader, but, admitting the truth of all that is stated, it does not negative the conclusion that complainants might have collected the Wheeler note by the use of the least diligence. The mortgage upon the Minnesota property was a mere 190 incident to the debt. However' invalid that was, whatever the fraud practised in obtaining it, however worthless the ■mortgaged premises, and though said mortgage had been released and could not be foreclosed, did not necessarily interfere with' complainants’ ability to collect the note. The note was made payable to one Haight, and by him assigned to White. For aught that appears, Wheeler and Haight are both entirely solvent, and the note might have been collected by the use of the slightest diligence. And until this diligence was used, or proper excuse shown for the non-performance of this precedent condition, respondents did not, in a legal sense, assume the payment of said debt. Aside from the security afforded by the mortgage, there was a personal liability on the part of Wheeler and the indorser, Haight, which inured to the benefit of complainants, by the assignment of the note by respondent; and there is no averment that this personal liability did not still continue, nor that the debt could not have been made from them by demanding the same, or the institution of legal proceedings. The mere non-payment of the note did not fix respondent’s liability. Complainants had something to do, and that was to use due diligence in its collection. If they had declared directly upon the note against respondent as the indorser, it certainly would not be claimed that an averment that they could not collect the note, or that, they could not, with the use of due diligence, would have been sufficient,1 when the question of sufficiency was raised by special demurrer. It is not true that a conditional contract is always well pleaded, if the condition is correctly stated; and the breach of such condition is averred in the words of the instrument itself. While the pleader is not required to state propositions or conclusions of law, nor the mere evidence of facts, yet the complainant should state the facts full enough to enable the Court, upon the admission of the facts set forth, to grant the relief sought. Tall191 man v. Green, 3 Sandf., 428. Or, as it is expressed in another case, every fact should be averred, which is necessary to show a right to recover. Murdock v. Mut. Ins. Co., 2 Comst., 216. Thus, to illustrate, the contract of the indorser is, that the maker will pay, on presentment, according to the terms of the instrument, or if he make default, the indorser will pay, on clue notice of such demand and nonpayment. If the indorser is sued, in addition to the making and indorsement of the note, it should also be shown that demand was made upon the maker, at the time and place prescribed, and that notice of the non-payment was given to the indorser. Spellman v. Needer, 5 How., 5. No one would pretend that it would be sufficient to aver that the note could not, by the use of clue diligence, be collected of the maker. For if the pleader would excuse himself, or seek to bring his case within any of the exceptions contained in §§ 1801, 1802, of the Revision of 1860, he must state the facts, and not stop with the general averment that diligence has been used, or that its use would have been unavailing. And when he states matter in excuse, if it is insufficient, or fails to fix the liability of defendant, under his contract, the defect may be reached by demurrer. In this case we need not stop to inquire whether a mere demand upon the maker, and due notice, would amount to the use of such diligence as, under the contract, would make respondent liable. No facts are stated which legally show his liability, by way of excuse or otherwise, and the demurrer should, therefore, have been sustained. More than this we need not determine at this time. Reversed.