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There is no allegation of consideration in the complaint independent of that, if any, which appears upon the face of the instrument. That consideration as alleged is “for her attention (paid or given) to my son, John Stanton Marshall.”

To make defendants liable, this attention must have been bestowed either in performance of a request previously made, or must have been in its nature beneficial to the party promising, so as to operate as a reasonable and probable consideration for the promise. (Ingraham v. Gilbert, 20 Barb., 152; Ehle v. Jud

son, 24 Wend., 97, 98; Goulding 2. Davidson, 28 Barb., 438; 9

Wilson v. Baptist Ed. Soc., 10 Barb., 308; Gould's Pleading, 176, sec. 15.)

Here, certainly no request whatever is averred, and I think not necessarily or fairly implied. The instrument is quite as consistent with the idea that the services were performed without any request at all, or at the request of John Stanton Marshall, as at the request of the testator.

It seems to me that this should not be left to inference. The request is a prerequisite to the liability, and I think the pleader 10 should arer it. While pleadings are not to be condemned for

want of form, and are to be liberally construed, I think substantial defects are not to be disregarded. We are not to uphold a pleading simply because a state of facts might exist against what is probable, which would justify an action.

The same considerations apply to the other alternative. I do not see that the services are presumed to have been beneficial to Benjamin Marshall. They were rendered to another person, his son, not alleged nor presumed to have been a minor, or in a

situation to make it obligatory upon the father to support him. 11

If every fact fairly inferable from the terms of this writing, were spread out on the face of this complaint in the shape of distinct and positive allegations, the complaint would not have stated a good cause of action. If Benjamin Marshall had declared orally in so many words what he has thus expressed in writing, I think no one would have supposed that he rendered himself liable to an action.

We ought not, I think, to extend the application of section 162 beyond the probable intent of the legislature, or to give a

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


party the benefit of a cause of action by this indirect mode of 12 averment, when he would not have had it, if he had put his allegations in proper form, and in express terms. Some rules of pleading, in the confusion and anarchy introduced by the Code, must still be observed and one of them is or ought to be, that where a consideration is not implied, or a request is essential to the defendant's liability, it is the gist of the action and must be specially averred.” (Gould's Pleadings, 176.)

The case of Prindle v. Carruthers (15 N. Y., 425), is not in conflict with the views here expressed. There the consideration

13 “ for value received ” appeared from the face of the instrument, and was moreover held to have been argumentatively inferable from the extrinsic allegation that the defendant made his contract in writing. (14 Ib., 431.)

It is suggested that the rule, that where a contract is susceptible of a two-fold construction, one of which will make it valid and the other void, the legal presumption is in favor of the validity of the contract, may help the plaintiff in this case. The rule turns rather upon a question of evidence or presumption, than of pleading. If the question here turned upon the nature of the 14 services rendered the rule would apply. But it turns upon the question for whom or at whose request were the services rendered, and the absence of any allegation on this point was never, that I am aware of, supposed to be aided or cured by this rule.

It is further suggested that the rule of construing a pleading under the Code contrary to what it was before, is to construe it most favorably to the pleader. I do not admit the existence of the rule to this unqualified extent. It may be admissible on questions of form, but it can not be applicable in regard to the

15 fundamental requisites of a cause of action.

The order of the Special Term should be reversed with costs, and judgment rendered in favor of the defendants on the demurrer, with leave to the plaintiff to amend her complaint on payment of costs.

GOULD, P. J., concurred.
PECKHAM, J., dissented.

Carnwright v. Gray, 127 N. Y., 92.


New York Court of Appeals, 1891.

[Reported in 127 N. Y., 92.]

1. A promissory note must contain the positive engagement of the maker

to pay at a certain definite time, and the agreement to pay must not

depend on any contingency, but be absolute and at all events. 2. The fact that an instrument is made payable at a specified time after

the death of the maker does not prevent its being a valid promissory

note. 3. It is not necessary under the N. Y. Statute (1 R. S. 768), in actions upon

promissory notes, either to aver or .prove consideration ; the rule applies whether the note is negotiable or not, and whether it expresses value received or not.



Action against defendants as executors.

The complaint alleged: That Samuel P. Freligh, on the 2d day of September, 1871, became and was indebted to plaintiff in the sum of fifteen hundred dollars for moneys lent by plaintiff to said Freligh, and that on said 2d day of September, 1871, to secure the payment of said sums and as evidence of said indebtedness and in consideration thereof, the said Samuel P. Freligh, at on said 2d day of September, 1871, made, executed and delivered to plaintiff his certain promissory note or obligation in writing, of which the following is a copy, viz.:

“QUARRYVILLE, September 2d, 1871. Thirty days after death I promise to pay to Cornelius W. Carnwright fifteen hundred dollars with interest.

SAMUEL P. FRELIGH." That plaintiff is still the holder and owner of said promissory note or written obligation, and that no part thereof, or of the said money consideration has been paid, and that the said sum of fifteen hundred dollars, with interest, from September 2d, 1871, is due and owing to the plaintiff therefor and thereon.

The complaint then showed the death of said Freligh, defendants' qualification as his executors, plaintiff's demand upon them for the payment of the note after the same became due and payable and their refusal so to do.

For a second cause of action the complaint alleged the making


Carnwright v. Gray, 127 N. Y., 92.

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and delivery to plaintiff " for value received” of a similar note 4 by the deceased, wherein “ for value received” the said Freligh “ for value received " promised to pay, etc.

Judgment was demanded for fifteen hundred dollars and interest.

The defendants denied the making of the note, alleged that if ever made it was made without consideration, and therefore, void, and that if ever made, it was paid during the lifetime of said Freligh.

The plaintiff produced witnesses who testified to the genuineness of the deceased's signature, and put the note in evidence. He then rested. The court denied defendants' motion for a nonsuit, made upon the ground that plaintiff had failed to establish a valid contract against the estate, and had not proved that the instrument introduced in evidence had any consideration.

At Circuit plaintiff had a verdict.

The General Term of the Supreme Court affirmed the judgment, on grounds similar to those presented in the following opinion of the Court of Appeals.




The Court of Appeals affirmed the judgment. Brown, J. When the plaintiff rested his case, and again, at the close of the testimony, the defendant moved to dismiss the complaint upon the ground that no proof had been given that the instrument sued upon had any consideration. These motions were denied and the court instructed the jury that the instrument was a promissory note and imported a consideration, and that the burden rested upon the defendants to show that it was without consideration.

The exceptions to these rulings present the principal question argued upon this appeal.

The statute of this state in reference to promissory notes provides as follows (1 R. S., 768):

“Sec. 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person or his order, or to the order of any other person, or unto the bearer, any sum

Carnwright v. Gray, 127 N. Y., 92.

8 of money therein mentioned, shall be due and payable as therein

expressed; and shall have the same effect and be negotiable in like manner as inland bills of exchange, according to the custom of merchants.

“Sec. 4. The payees and indorsees of every such note payable to them or their order and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned, against the makers and indorsers of the same, respectively, in like manner as in cases of inland bills of exchange

and not otherwise." 9

Our statute is a substantial re-enactment of the statute of Anne (3 and 4 Anne, c. 9), which provided that: “ All notes signed by a person promising to pay to another his, her or their order or to bearer” should be construed to be by virtue thereof due and payable to any such person to whom the same is made payable, etc., etc.

This statute was held by the courts of England to include within its terms a non-negotiable note (Smith v. Kendall, 6

D. & E., 123 ; Burchell v. Slocock, 2 Ld. Raym., 1545; 3 Kent's 10 Com., 77).

In the case first cited Lord Kenyon said: “A note may be made payable to ‘A’or bearer, ‘A’or order, or to‘A’ only." Similar decisions were made by the courts of this state under our own statute (Downing v. Backenstoes, 3 Caines, 137; President v. Hurtin, 9 Johns, 217; Kimball v. Huntington, 10 Wend., 675; Hall v. Farmer, 5 Denio, 481).

In Downing v. Backenstoes, a non-negotiable note was declared on as within the statute, and the defendant demurred on

the ground that the declaration did not allege the transaction 11

and consideration upon which the note was given. The court gave judgment for the plaintiff saying: “The very point was settled in Green v. Long (April Term, 1798) in conformity to the adjudications in Westminster Hall."

In President v. Hurtin it was said: “The note set forth is a good promissory note within the statute, though it has no words bearer or order. This is the established English law and the same rule is recognized by this court."

In Kimball v. Huntington the action was upon a due bill in

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