Morris Canal & Banking Co. v. Van Vorst

Carpenter, J., delivered the opinion of the court. The second plea is non damnifiaatus, in the nature of a plea of performance: that the cashier, named in the condition of the bond, did well and faithfully serve the company, and that the said company did not suffer any loss by reason of any malfeasance, wilful neglect, or wrongful act of the said cashier. The plaintiff, in the replication to this plea, has undertaken to show how the company has been damnified by the wrongful acts of this officer. It is objected that the replication is too general, and that the breach of the condition is not sufficiently assigned. Such pleading has, however, been frequently sustained. It is a rule of pleading, that when a subject comprehends multiplicity of matter, then, in order to avoid prolixity, the law allows of general pleading, as a bond to return all writs, &c. Buller, J., 1 T. R. 753; Steph. Pl. 355 (359 1st ed.); 1 Saund. 411, note 4. Thus in debt on bond, the condition of which was that the agent of the regiment would duly pay over such sums of money as he should receive from the paymaster general for the use of the regiment, non damnifiaatus being pleaded, the replication was, that the defendant received from the paymaster general, for and on account of the said regiment, several sums of money, amounting in the whole to £1400, which he had not paid over. On demurrer, it was held that the breach was sufficiently assigned, and that it was not necessary to set out the several days and times and circumstances, and thereby — 106 — render the record prolix to no purpose. Cornwallis v. Savery, 2 Burr. 772. So in debt on bond conditioned that R. S. would render and pay to the plaintiff a true and just account of all moneys, bills, &e., which he should receive as his agent, to a plea of perform- ■ anee, replication that R. S. received divers sums of money, amounting to £2000, belonging to the plaintiff’s business- as agent, and had not rendered and paid, &c., was held to be sufficiently certain. Shum v. Farrington, 1 B. & P. 640. So in debt on bond conditioned that B. R. should account for and pay over to the plaintiffs, as treasurers of a charity, such voluntary contributions as he should collect for the-use of the society, a like general assignment of the breach in the replication was, on special demurrer, held to be sufficiently certain. Barton v. Webb, 8 T. R. 459. It may be proper to say, that in the case last cited a point was taken similar to one made by counsel in the present case. It was said that the defendants, executors of the surety, were strangers to the transaction, and had no means of knowing, from so vague a charge, what they were called upon to answer. But it was held, as must be very clear upon the slightest reflection, that the rule of law is the same as to all defendants; that the form of the pleading is the same, whether the suit is brought against the principal of the bond or against the surety, or against the executors of a surety. Greater certainty is not required in the one case than in the other. So in debt on bond of deputy sheriff, when the plaintiff, in his replication to the plea of general performance, assigned for breach of the condition that the defendant had collected moneys, as under sheriff, to the amount of $1000, which he refused to account for or to pay, this was held sufficient. Hughes v. Smith and Miller, 5 John. 173. See S. P. Calvert v. Gordon, 7 B. & C. 809. See also 1 Lev. 94, cit. Com. Dig. Plead. (c. 45.) But it was hardly necessary to cite cases. As said in one ease, unless such assignment were permitted, the whole benefit of the statute, by which a plaintiff is permitted to assign several breaches in his replication, would be done away, and it would be necessary in most cases to file a bill in equity .before — 107 — ho could assign his breaches with sufficient certainty. Indeed it was admitted on the argument, that in suits on bonds, by which money collected was secured to be paid over, such general assignment had been held sufficient. It was attempted to distinguish those cases from the present; but the reason equally applies. This case is that of the bond of the cashier of a large money institution, who for several years received and disbursed its funds, and it would be equally impossible to specify what securities for money he had received and misapplied, as to specify what sums of money he had received, and from whom. Such pleading would be utterly impossible, and, if required, would be fatal to all attempts to prosecute upon those bonds. To attempt, then, to specify the securities, and from whom received, would be to state in pleading that which is more properly matter of evidence, and would be a greater particularity than, in this case, the nature of the duty and of the default will conveniently allow. Principle and authority seem equally to be against the distinction contended for. To some extent the same rule applies here as in covenant, where it has been held, that when matter lies generally within the knowledge of the covenantor, then a general allegation is sufficient. Thus in Gale v. Reed, 8 East 85, where some of the decisions cited were recognised, the covenant by a person relinquishing the business was not to carry on the business of a,.rope maker, except on government contracts, and not to employ any other person to make cordage, &e., it was held that a breach for having made cordage for divers persons, other than for the government, and for employing other persons than the plaintiffs, was well assigned. Another case of demurrer, specially assigned, is that notice of the default by the cashier is not alleged to have been given to the surety ill his lifetime, or to his administratrix since bis death. It was admitted that the precedents are both ways, and the allegation being merely formal is obviously unnecessary. It has been before held in this ease that notice of the default was not necessary to charge the sureties. 1 Zab. 100, 116, &c. The breach of the condition is sufficiently assigned by the plaintiff, and the replication is sufficient. . — 108 — The defendant has also demurred specially to the replication to the fourth plea. The plea is, that the cashier made and executed his promissory note, payable to the company, five years after date, in full satisfaction and discharge of all moneys and securities unaccounted for, &c.; which said note, so made and delivered as aforesaid, the said company accepted and received in full satisfaction, &c. In the replication to this plea, the plaintiff, by way of inducement and in order to show that the note was not given and received in full satisfaction and discharge of the damages sustained by reason of the breach of the condition of the bond, avers that a settlement had been made by and between the company and the cashier; that the defalcation of the cashier was found, and admitted to amount to the sum of $121,229.47 ; that, in partial satisfaction of this defalcation, the cashier paid to the company in cash the sum of $3000, and in land, by a transfer of real estate, the sum of $80,000; that in further satisfaction of the said damages, with the consent and approbation of the defendant, this bond was taken at $10,000, the amount of the penalty, and that the note of the cashier for $28,229.47 was taken in full satisfaction of the balance. The plaintiff then adds this traverse: without this, that the said cashier made and executed the said supposed promissory note in full satisfaction and discharge, &c. ■ It is said, on the part of the defendant, that the inducement to a special traverse, in order to be sufficient, must set up material facts repugnant to the allegation intended to be denied ; that it must lead to and support the traverse, which must properly be an inference from or a consequence of the inducement. Gould Pl. ch. VII. secs. 14, 55, 64, p. 382, &c. It is urged that upon these principles the inducement is not sufficient. Undoubtedly the inducement to a special traverse must set up material facts repugnant to the allegation traversed ; but in our judgment such facts are here averred. The affirmative introductory matter in the pleading of the plaintiff, set out as the foundation of the traverse, seems to us to be material, and it is 'obviously inconsistent with what had been pi-eviously alleged by the defendant. If the facts thus averred by way of inducement be true in point of fact, most clearly the note in question — 109 — was never given in full satisfaction and discharge of the damages which the company had sustained by reason of the breach of the condition of the bond. It is not necessary, in answer to what has been said by the counsel of the defendant, to enlarge upon the character and object of a special traverse. It is sufficient for the present to say that this form of denial seems to have been properly adopted on the present occasion. It was proper, by putting the denial- of what had been set up in the plea in this qualified form, slating the circumstances of the transaction in an inducement, to give the adverse party an opportunity to raise an issue at law for the adjudication of the court. It furnished him with an opportunity,-if he saw fit to embrace it, to question the validity of the transaction or to test its legal effect, upon which however, no point has been made. This mode of traverse has been moulded into a technical form, but, as was well observed by counsel, in substance it arises out of the very nature of things, and is to be found in some shape in every system of pleading. The party who resorts to such mode of pleading sets up his own statement of opposing facts, thus argumentatively denying the truth of what has been alleged by the adverse party, which he then follows by the direct denial necessary to form an issue, the denial being thus the direct result of the preceding statement. Here the plaintiff, after a statement of the circumstances under which, as he alleges, the note had been given, then in direct and formal terms denies that it had been made and executed for the purpose alleged by the defendant. But again it is urged that the traverse itself is insufficient. It traverses that the note was made aud executed, and not that it was accepted and received in satisfaction. The making and executing the note in satisfaction is averred in substance, if not in terms, by the defendant, and a traverse may be well taken to what, though not expressly alleged, is necessarily implied. Steph. Pl. 195 (218, 1st ed.) If delivered for one purpose, could the note have been accepted for any other? If anything is given, it must be accepted as intended or declared by the giver. — 110 — It is settled that the replication to the plea of accord and satisfaction may either deny the delivery of the thing in satisfaction or it may deny the acceptance, or indeed, as it would seem, the plaintiff may take issue on the entire allegation. “ Quod non dedit in satisfactione,” is a good replication, for there must be a mutual payment and acceptance in satisfaction, and the one imports both. Com. Dig. Accord (e). In Young v. Rudd, 5 Mod. 86, to indebitatus assumpsit on a quantum meruit, the defendant pleaded in bar that he gave the plaintiff' a beaver hat, which he accepted in satisfaction of the debt. The plaintiff traversed, that he accepted it in satisfaction; and upon demurrer it was objected in behalf of the defendant, that it was an immaterial traverse, because the giving was the directing matter which ought to have been traversed. To which the answer was, and so the court held, that either the giving or the acceptance of what was given in satisfaction might be traversed. In Webb v. Weatherby, 1 Bing. N. Cas. 502, where the above case was cited as authority by the court, it was held that the receipt in satisfaction implied payment in satisfaction, and that the plaintiff might take issue on the entire allegation. It was contended in this case, as payment and acceptance were both material allegations, that the plaintiff ought to elect on which of them he would tender issue. The same principles were again recognised in Ridley v. Tindall, 7 Ad. & Ell. 134. The precedents in 3 Chit. P. 1156, 1 Lil. Ent. 105, &c., are in accordance. This replication is also sufficient, and both demurrers must be overruled. Randolph, J., concurred. Demurrers overruled.