Wilson v. Clarke

By the Court. MoMillan, Ch. J. The agreement upon the part of Clarke, the appellant, was not an unconditional one; it was, to deliver to the plaintiff freight for transportation, as it should be received by, and delivered to him by the United States authorities, under the agreement with Spurr, or other sources, and under the further qualifications stated in the agreement. Under the terms of the agreement upon which [369] this action is brought, until freight was delivered to Clarke, and the happening of the other contingencies mentioned in the agreement, there was no obligation upon him to deliver freight to the plaintiff for transportation, and, in the absence of the obligation to deliver, the neglect or refusal to deliver would not be a breach of the agreement. The averment, “ that said defendant neglected and refused to furnish to him, the plaintiff, freight for transportation, according to the terms of said agreement,” states a conclusion of law, and as no facts are stated in the complaint, justifying such conclusion, it amounts to nothing. (Schenck vs. Naylor, 2 Duer, 676.) The complaint should have averred, in a proper manner, the delivery of freight to Clarke, and any other fact necessary to create the obligation upon Clarke to deliver freight to the plaintiff, and then have negatived the performance of the agreement by Clarke. In assigning a breach of an agreement, “ If the -matter to be performed by the defendant depend on some other event, it seems proper, not merely to assign the breach in the terms of the contract, but first to aver that such event took place ; as in debt on a bond, conditioned that a collector of poor rates should render an account of moneys received, it should be averred that he did receive moneys, and then, that he did not render an account of such ihoneys.” 1 Chitty Pl. 333; Juliand vs. Burgott, 11 Johns. 6. The second point made by the appellant is, that no facts, showing any damage to the plaintiff, are set forth in the complaint. Assuming the breach of the agreement to be well pleaded, under the allegation of damages in the complaint the plaintiff would be entitled to recover some amount, which, although merely nominal, would avoid the demurrer. Without further examining the question, it seems to be at least doubtful, whether, in the absence of further allegations, [370] the plaintiff could recover more than nominal damages, but tbat is a question we do not now determine. The order overruling the demurrer is reversed.