ALLEN v. PATTERSON.

New York Court of Appeals, 1852.

[Reported in 7 N. Y., 476.]

1. Facts, but not evidence, must be pleaded.

2. A complaint stating in substance that on, etc., at, etc., plaintiffs at defendant's request sold and delivered to him goods, for which he then owed, or was then bound to pay, plaintiffs, the sum of, etc; and further averring there was then due them from defendant the said sum, for which sum plaintiffs demanded judgment—states facts enough to constitute a cause of action.

These facts are implied in a statement that "defendant is indebted to plaintiffs in the sum of, etc., for goods, sold,” describing the sale as above, in form as in an old count in assumpsit.

3. The allegation that the price is "due" may be reasonably intended to mean that it is payable.

4. "Due" is sometimes used to express the mere statement of indebtment, and then is an equivalent to owed or owing; sometimes to express the fact that the debt has become payable.

5. The Code rule that allegations "must be liberally construed with a view to substantial justice between the parties," applied.

An action for the price of goods sold and delivered. The allegations of the complaint were as follows: "The plaintiffs complain against the defendant for that the defendant is indebted to the plaintiffs in the sum of three hundred and seventy-one dollars and one cent, for goods sold and delivered by the plaintiffs to the defendant at his request, on the first day of May, 1849, at the city of Buffalo, in said county.

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And the plaintiffs say that the items in their account exceed twenty in number. And the plaintiffs say that there is now due them from the defendant the sum of three hundred and seventy- 2 one dollars and one cent, for which sum the plaintiffs demand judgment against the defendant, with interest from the 20th day of October, 1849, besides costs. And the plaintiffs say the foregoing complaint is true."

[A bill of items was annexed to the complaint.]

The defendant demurred to the complaint, and assigned for cause of demurrer that it did not state facts sufficient to consti

Allen v. Patterson, 7 N. Y., 476.

3 tute a cause of action, in this: First, There is no allegation in the complaint of a contract by the defendant; Second, the plaintiffs have alleged no breach of any contract by the defendant; Third, there are no facts stated in the complaint showing that the defendant, at the time of the commencement of said action, was indebted to said plaintiffs; Fourth, there are no facts stated in the complaint showing anything was due and payable.

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The Supreme Court at Special Term, MARVIN, J., overruled the demurrer [citing Tucker v. Rushton, 2 Code Rep., 59], and holding that the insufficiency of the allegation of indebtedness was not fatal because the subsequent statement sufficiently alleged the facts of a sale and delivery; that plaintiff need prove nothing more, and an allegation of breach was not necessary [approving rule in Glenny v. Hitchins, 4 How. Pr., 99]; and if defendant relied on payment or unexpired credit, he must show that in defence.

The General Term affirmed this without further opinion. HOYT, J., dissenting, thought the allegations that defendants were "indebted" and that the sum was "now due," being mere 5 conclusions, must be wholly disregarded; and that reading the complaint without them, there was no allegation that the sale was on a promise to pay at any particular time, or upon request or upon delivery; nor that they were sold upon credit, nor that they were not paid for on delivery; nor was there any allegation of default; and defendant's admission that he had bought goods of plaintiff would not sustain an inference that they were never paid for [citing Morse v. Bogart, 4 Den., 108]: "The complaint should show that the goods were sold to be paid for upon delivery, request, at a particular time, or upon some contingency, and that the defendant had failed to perform on his part."

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The Court of Appeals affirmed the judgment.

JEWETT, J. The Code requires that a complaint shall contain a plain and concise statement of the facts constituting the cause of action. (142) [Re-enacted in Code Civ. Pro., § 481.] Every fact which the plaintiff must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated. This rule of pleading, in an action for a legal remedy, is the same as formerly

Allen v. Patterson, 7 N. Y., 476.

in this, that facts and not the evidence of facts must be pleaded. 7 (1 Chitty Pl., 215; Read v. Brookman, 3 Term R., 159, per Buller, J.; Eno v. Woodworth, 4 N. Y., 249.)

The plaintiffs, in their complaint in this action, state that the defendant is indebted to the plaintiffs in the sum of $371.01, for goods sold and delivered by the plaintiffs to the defendant, at his request, on the 1st day of May, 1849, at the city of Buffalo, in said county of Erie, and that the items of their account exceed twenty in number, and that there is now due them from the defendant the sum of $371.01, for which they demand judgment against the defendant, with interest from the 20th day of October, 1849, besides costs. In substance, stating that on the 1st day of May, 1849, at the city of Buffalo, in the county of Erie, the plaintiffs, at the request of the defendant, sold and delivered to him goods, for which he then owed, or was then bound to pay, the plaintiffs the sum of $371.01, and that the items of their account of such goods exceeded twenty in number; and further averring that there was then due them from the defendant the sum of $371.01 (that is, that the time when the said money for said goods was promised to be paid, had expired) for which sum the plaintiffs demand judgment, etc. The question is, then, are there facts enough stated to constitute a cause of action? I think that there are.

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The words "that the defendant is indebted to the plaintiffs in the sum of $371.01, for goods sold and delivered by them to him, at his request, on the 1st day of May, 1819," and that there was then due to the plaintiffs, from the defendant, said sum, clearly imply that a contract had been made between the plaintiffs and defendant, by which the former sold and delivered to the latter goods, at his request, for which he promised to pay the plaintiffs 10 the sum of $371.01; and that the period when the same was promised to be paid had expired. It contains every statement of facts necessary to constitute a good indebitatus count, in debt, according to the mode of pleading before the Code. (2 Chitty Pl., ed. 1812, 142; Emery v. Fell, 2 Term R., 28; 1 Chitty Pl., 345.) The counsel for the defendant insisted, that the statement that there is "due," etc., did not amount to a statement that the debt had become payable; that it meant no more than the statement

Allen v. Patterson, 7 N. Y., 476.

11 that the defendant is "indebted," etc., and that if the word "due" had two significations, the pleader could not select between them, and impute to it the one which suits his purpose best; for the maxim was, that everything should be taken most strongly against the pleader, or, if the meaning of the words be equivocal, and two meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading.

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In the case of the United States v. The State Bank of North Carolina (6 Pet., 29), Judge Story said, that the term "due" was sometimes used to express the mere state of indebtment, and then it was an equivalent to owed or owing, and it was sometimes used to express the fact that the debt had become payable. In the latter sense, I think, that the word "due" was used by the pleader in the complaint in this suit, and in that sense it may be deemed to have been used. In 1 Chitty Pl., 241, it is said that it it is a maxim in pleading, that everything shall be taken most strongly against the party pleading, or rather that if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them; for it is to be 13 intended, that every person states his case as favorably to himself as possible; but that the maxim itself must be received with some qualification, for the language of the pleading is to have a reasonable intendment and construction; and when a matter is capable of different meanings, that shall be taken which will support the declaration, etc., and not the other which will defeat it. (Wyat v. Aland, 1 Salk., 325.)

The Code (§ 159) declares, that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between 14 the parties; and § 140 provides, that the rules by which the sufficiency of the pleadings is to be determined are modified as prescribed by that act. I think, then, that we are not only authorized, but required, to consider that the term "due" was used in the complaint to express the fact that the money sought to be recovered had become payable, or the time when it was promised to be paid had elapsed. The judgment should be affirmed with costs.

Judgment affirmed.

Secor v. Sturgis, 16 N. Y., 548.

SECOR v. STURGIS.

New York Court of Appeals, 1858.

[Reported in 16 N. Y., 548; aff'g 2 Abb. Pr., 69.]

1. It seems that an entire claim, arising either upon contract or tort, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment on the merits in either will be available as a bar in the other suits. 2. But several suits may be maintained upon several causes of action; it makes no difference that such causes of action might be united in a single suit.

3. The true distinction between a single and entire demand or right of action, and those which are several and distinct, is, that the items of the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts.

4. Where items of an account arise at different times, there must be either an express contract or the circumstances must be such as to raise an implied contract, embracing all the items, to make them a single or entire demand or cause of action, within the rule against splitting a cause of action.

5. In the case of a running account it may usually be fairly implied that it was kept in pursuance of an agreement that an account might be opened and continued.

Plaintiffs sued as co-partners on a bond given to procure the 1 discharge of defendant's vessel from an attachment alleging a sum due for materials furnished.

The plaintiffs were engaged in two different kinds of business, one as ship-chandlers, furnishing stores to ships; the other as ship-carpenters, repairing ships. They did the one business on one floor of their store, the other on another floor, and kept separate accounts of each business, and in this case rendered to the captain who ordered the stores and the repairs, one bill for 2 the stores and another for the repairs; the bill for the stores being $521.15, that for the repairs $139.32.

The stores were ordered from one clerk of the plaintiffs, and the repairs from another. The plaintiffs first attached the vessel under our State law for the stores, and afterwards libelled her in the United States Court for the repairs. Two of the defendants gave bonds so as to discharge the vessel from the libel, and admitted the liability for the repairs in the action in the United