Blank v. Hartshorn, 37 Hun, 101.

The first count alleged that from about first of May, 1884, to 2 1st January, 1885, the plaintiff pastured, fed and took care of, and furnished hay and other feed for, fifty-two head of cattle belonging to the defendants, at the defendants' request, and that such pasturing, etc., was reasonably worth $600. The second count of the complaint alleged that the plaintiff pastured a like number of cattle belonging to the defendants, under a special agreement made between the plaintiff and the defendants, about 1st May, 1884, by the terms of which the defendants agreed to take said cattle to the city of New York, and sell them on or before 1st October, 1884, and after deducting the purchase price of the cattle and the cost of transportation, to pay the plaintiffs two-fifths of the remainder of the proceeds of the sale.

The third count alleged a like agreement made between the defendants and one Peters, and that Peters had assigned his cause of action thereunder to the plaintiff.

The Supreme Court at Special Term, on motion of defendant, made before trial, required plaintiff to elect on which count he would go to trial, and to amend his complaint accordingly; and ordered that if he failed to elect, his complaint should be stricken out.

The General Term reversed the order.

SMITH, P. J. [after recapitulating the facts]: "Except in one particular hereinafter mentioned, the three counts relate to the same transaction. On that ground the respondent's counsel contends that the pleading violates the mandate of the Code, that the complaint must contain "a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition. (Sec. 481, sub. 2.) But there may be more than one cause of action arising out of the same transaction, and if the several causes of action are such as may be united under section 484, their joinder does not necessarily vitiate the complaint. Where it can be seen that the statement of each cause of action is probably needful in order to prevent a failure of justice, in consequence of a variance between the pleading and the proof, we think such statement, provided it be plain and concise, should not be regarded as "unnecessary repetition "

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Blank v. Hartshorn, 37 Hun, 101.

6 within the meaning of the Code. Thus, in an action for labor and services alleged to have been performed under a special contract at an agreed price, if it appears that, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, we think that the spirit of the Code does not prevent the adding of a count for the same labor and services upon a quantum meruit. In the present case the first count is of that nature and it embraces a period from the 1st of October, 1884, to 1st of January, 1885, not covered by the special agreement as set out in the other two counts. Upon these grounds we think the first and second counts may be permitted to stand.

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As to the necessity of the third count the plaintiff, in his affidavit used on the motion, avers that the farm on which he pastured the cattle was rented by Peters for the plaintiff's use; that the contract with the defendants set out in the complaint was first negotiated and talked over by Peters and the defendants when the plaintiff was not present, and that it will probably be a question on the trial whether the plaintiff can claim under 8 the contract, as the undisclosed principal of Peters, or as his assignee. In these circumstances we think the third count also should be allowed to stand to enable the plaintiff to present the several lines of proof upon which he relies.

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By this disposition of the matter the defendants cannot be harmed, except in being deprived of the opportunity of nonsuiting the plaintiff for a variance in proof, or of driving him to a motion for leave to amend. A special object of the Code is to remove all such meshes and pitfalls from the path of litigants. The defendants may interpose as many defenses as they have to each cause of action, in the same manner and with the same effect as if such cause of action stood alone.

These views are in harmony with the cases of Longprey v. Yates (31 Hun, 432), decided in the old Fourth Department, and the authorities there cited. In Velie v. Insurance Company (12 Abb. N. C., 309, s. c. 65 How. Pr. R., 1), WESTBROOK, J., speaking of the different grounds of recovery presented by the two counts in that case, said: "If either or both are tried, the proof upon each ground of recovery stated may be close and con

Spear v. Downing, 12 Abb. Pr., 437.

flicting. A jury of twelve men may be divided in opinion as to 10 which one is established, while all may unite, some for one reason and some for another, in the conclusion that the plaintiff is entitled to recover." * And the Court of Appeals has held in a recent case, that "it is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence; if the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation and a part upon the other." (Murray v. 11 Ins. Co., 96 N. Y., 614.)

We think the order should be reversed and motion denied, with ten dollars costs and disbursements.

BARKER, HAIGHT and BRADLEY, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.

SPEAR v. DOWNING.

Supreme Court, Third Department; General Term, 1861.

[Reported in 12 Abb. Pr., 437.]

1. Substantial and radical defects in a complaint may be reached under the general objection in a demurrer, that it does not state facts sufficient to constitute a cause of action.

2. Section 162 of the Code of Procedure (Code Civ. Pro., §534), which provides a mode of pleading upon instruments for the payment of money only, applies merely to instruments apparently valid on their face. 3. An instrument in the following form: "Troy, August 4th, 1846. I hereby agree to pay Miss A. Y. twenty dollars per month, during her natural life, for her attention to my son, J. S. M. (Signed) B. M." is not a promissory note.

4. Such an instrument expresses no consideration, since it affords no presumption that the services referred to were rendered in pursuance of

*In that case, plaintiff had brought an action against an insurance company, to recover an amount of insurance, alleging in one count the issuance of the policy, and in a second count a contract by defendant to insure and to issue a policy. A motion to compel the plaintiff to elect upon which count he would rely for a recovery was denied, the judge commenting upon the difficulty in deciding whether a policy had actually been issued or only an agreement to insure and to issue a policy.

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Spear v. Downing, 12 Abb. Pr., 437.

a previous request of the promisor, or that they were beneficial to him.

5. Where a consideration is not implied, or a request is essential to the defendant's liability, it must be specially averred in pleading.

6. The rule of construing a pleading under the Code most favorably to the pleader, is not applicable in regard to the fundamental requisites of a cause of action.

Appeal by defendants from order of Special Term, overruling demurrer to complaint.

The complaint alleged that one Benjamin Marshall, in consideration of the services therein mentioned, made and delivered to the said plaintiff, then a single woman by the name and description of Miss Alice Yourt, his promissory note or instrument in writing, in the words and figures following:

TROY, August 4th, 1846. I hereby agree to pay Miss Alice Yourt twenty dollars per 2 month, during her natural life, for her attention to my son, John Stanton Marshall. BENJAMIN MARSHALL.

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The complaint then proceeded to allege the death of Benjamin Marshall on the 2d of December, 1858; the grant of letters testamentary to the defendant; that at the time of his death sixteen monthly payments agreed to be made by the instrument aforesaid remained due and unpaid, amounting to the sum of $320; that since his decease twenty-one monthly payments up to the 1st of September, 1860, had become due and payable to said plaintiff amounting to the sum of $420-no part of which has been paid though duly demanded; and demands judgment for both said sums of $320 and $420 with interest on the monthly installments, together with costs of the action.

The defendants demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action and specified the following defects. 1. That the complaint contained no allegation of the performance or bestowment of attention. 2. Nor of the nature, extent or value of such attention, nor that it was of any value.*

* The objections need not now be specifically set forth, when the ground of demurrer is the insufficiency of the pleading. Code Civ. Pro., § 490.

Spear v. Downing, 12 Abb. Pr., 437.

The court at Special Term rendered judgment for the plaintiff 4 on the demurrer; the defendants appealed.

HOGEBOOM, J. I think the complaint is not insufficient for either of the specific defects named in the demurrer. I think the fair inference is that the services or attentions had been already rendered. The omission to state their nature, extent and value, if necessary to be stated, was a defect to be reached by motion, under the section 160 of the Code, and not by demurrer. But I think substantial and radical defects in the complaint may still be reached under the general allegation that the complaint does not state facts sufficient to constitute a cause of action. (Code, 144; Durkee v. Saratoga R. R. Co., 4 How. Pr., 226; White v. Brown, 14 ib., 282; Haire v. Baker, 1 Seld., 359; Conn. Bank v. Smith, 9 Abb. Pr., 178; s. c. 17 How. Pr., 487.)

This brings us to the question principally argued before us, to wit; whether the complaint on its face contains the elements of a good cause of action.

This depends mainly upon the construction to be given to section 162 of the Code, which provides that in an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due him thereon from the adverse party, a specific sum which he claims.

The instrument in question comes within the literal description of the kind of instrument mentioned in this section; for it is an instrument for the payment of money only. But obviously, something more is necessary.

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It would seem that it should be an instrument on its face apparently valid, certainly one not clearly void; for then the 7 instrument would nullify itself.

This instrument is not a promissory note because it was not payable at all events. The death of Alice Yourt within a month after the date of the instrument would have defeated any recovery. (Prindle v. Carruthers, 15 N. Y., 430.) In the language of the Court of Appeals "it is necessary, therefore, that the promise should, from the complaint, appear to have been made upon consideration." (Ib.)