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Cook v. Warren, 88 N. Y., 87.


single case which is brought to our notice, and which holds a pleading like this sufficient. That case, resting upon no pertinent authority, must be tested by sound principle, applicable to the question. Thus tested, it is not easily justified. We ought not to encourage loose or ambiguous pleading. The complaint is required to state, plainly and concisely, the facts constituting a cause of action. The pleader may not aver a legal conclusion as an equivalent for the groupe of separate facts from which it is an inference. The allegation should be such, and so stated, as to permit a distinct traverse and evolve a definite issue. Although pleadings are to be construed liberally, that does not necessarily mean that they shall be held to say what they do not, nor that words which have a fixed legal meaning, settled by the common law or by statute, shall be enlarged or modified by an inaccurate popular use. Such use is apt to be shifting and variable; adequate for ordinary purposes, but not so stable or precise as to safely crowd out and take the place of legal definitions which furnish a more accurate and unvarying standard. The suggestions all tend toward a conclusion that this demurrer was well taken, and the complaint defective as alleged. 11 By the common law, and by statutory definition, a protest is one thing, and a notice of it to indorsers is quite another; and a note may be protested without notice of such protest being given to the indorsers. The one act does not necessarily assume or imply the other. Where the same word has different meanings, one the result of judicial or statutory definition, and the other founded simply upon an inaccurate popular use, the latter only can be adopted in construing a pleading where it plainly appears from other averments or the whole tenor of the paper that such was the sense in which it was employed. It is not intended to question or deny the doctrine of Allen v. Patterson (7 N. Y., 476), that under the liberal rule of construction established by the Code, a word capable of two different meanings should have a reasonable construction, and be so construed as rather to support than defeat the pleading. That is true as a general rule where the use of the word in dispute is purely ambiguous, but where it has a fixed legal meaning, and other parts of the complaint indicate that it is used in that sense,


Cook v. Warren, 88 N. Y., 87.

13 and there is nothing from which an intention to use it in a different or popular use can be fairly implied, there is no such ambiguity as requires an arbitrary choice of meanings to support the pleading, and the sense plainly intended must prevail. Where a contrary rule would end it might be difficult to foresee. It would introduce doubt and ambiguity in the room of certainty and precision, and make a pleading lose its utility as a means of accurately evolving an issue to be tried. It is plain that the pleader in the present case did not himself understand that his averment of due protest covered all the facts necessary to fix the indorsers, for he alleged every one of those facts, separately and in detail, except the last. The indorsement of the note, its maturity and due presentment, the demand of payment and refusal, the protest for non-payment, and the unnecessary allegation of service of notice of non-payment on the maker, were all stated; everything in fact except the one remaining circumstance of notice to the indorsers.


It is better to adhere to definite and fixed standards in pleading, and as far as possible encourage so much of system and accuracy 15 as is consistent with the liberal rule of the Code; and thus to require such a plain statement of the fact as will be unambiguous, present issues clearly, enable them to be distinctly and plainly traversed, and avoid legal conclusions as a substitute for a whole group of issuable facts. We think it is the better opinion in this case that the complaint was insufficient, and the demurrer well taken.


The judgment should be reversed, and the motion to strike out the demurrer as frivolous be denied with costs.

All the judges concurred.

Judgment reversed, and ordered accordingly.

Pahquioque Bank v. Martin, 11 Abb. Pr., 291.


New York Supreme Court, Special Term, 1860.

[Reported in 11 Abb. Pr., 291.]

1. Notice to an indorser of a note of the non-payment thereof, is not sufficient to charge him. He must have notice of presentment or demand and non-payment.

2. In a complaint against an indorser, an allegation that the note was duly presented and payment demanded, but it was not paid, and due notice of non-payment was given, etc., is insufficient on demurrer.

Action on a promissory note. The defendant Martin, sued as 1 an indorser thereon, demurred.

The contents of the complaint sufficiently appear in the opinion.

BONNEY, J. This action is against defendant Martin as indorser of a promissory note. The complaint, to which the defendant has demurred, states, among other things, that the note was duly presented for payment, and payment thereof demanded, but it was not paid; that the note was thereupon duly protested for non-payment, "and due notice of such non-payment was given to the defendants," Martin and others.


Notice of non-payment only, is, neither directly nor by implication, notice of presentment or demand, and consequently is not notice of the dishonor of the note within a proper meaning of the word. To make an indorser liable, he must be notified in proper time that the bill or note which he has indorsed has been dishonored. (Cook v. Litchfield, 5 Sandf., 330; s. c. 5 Seld., 279; Coddington v. Davis, 1 Comst., 186; Edw. on Bills, 593, and 3 cases cited.)

This statement in the complaint is, in my judgment, defective. The other allegations to which objection is made are, in my opinion, sufficient,

Judgment for defendant.



Mechanics' Bank v. Straiton, 3 Abb. Ct. of App. Dec., 269.


New York Court of Appeals, 1867.

[Reported in 3 Abb. Ct. of App. Dec., 269.]

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1. The words " or order," or bearer," and "bearer," in notes, bills and checks are words of negotiability, and the use of either of them makes the paper negotiable, although impersonal words be used in place of naming a payee; and if such impersonal words be used, it is negotiable by delivery without indorsement.

2. In an action against the maker of negotiable paper, payable to bearer, it is sufficient, after alleging that defendant drew it, to allege, that it was transferred and delivered to plaintiff, without saying by whom, if it be also alleged that the transfer was for value, and that plaintiff is the owner.

The Mechanics' Bank of the city of New York sued John Straiton, Charles G. Sandford and Thomas J. Raynor, in the Supreme Court, as drawers of a bank check. The allegations of the complaint were as follows, omitting averment of plaintiff's incorporation and defendants' co-partnership:

That, at the city of New York, on June 4, 1860, the said defendants, by their said firm name of Straiton, Sandford & Co., drew their certain bank check or draft, of which the following is

a copy:

[Date and number.]

Bank of the Republic: Pay to bills payable, or order, one thousand dollars.


That said check or draft was afterward, for a valuable consideration, transferred and delivered to the plaintiff, whereby said plaintiff became, and is now, the holder and owner thereof.

That said check was, after such transfer to the plaintiff, and on its behalf, duly presented, &c. [Here followed the usual allegations of non-payment and notice.]

The defendants demurred, on the ground that the check was not negotiable, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term.

The Supreme Court at General Term held, that as the paper was payable to a fictitious payee, it was therefore in effect pay

Mechanics' Bank v. Straiton, 3 Abb. Ct. of App. Dec., 269.

able to bearer and that the allegation that it was transferred and 4 delivered to plaintiff for value, was a sufficient averment, in connection with the other facts appearing by the complaint, that the paper was put in circulation by the drawers; citing 15 N. Y., 425. They accordingly affirmed the judgment. Defendants appealed.

The Court of Appeals affirmed the judgment.

SCRUGHAM, J. The rules which establish the negotiability of commercial paper apply to bank checks as to other bills of exchange, and the doctrine that when such instruments are made 5 payable to the order of a fictitious payee, they are to be construed and treated as payable to bearer, is too well settled to admit of serious question. In the great case of Gibson v. Minet, 1 H. Bl., 569, the determination proceeded upon the ground that, according to the true intent and meaning of the parties, the bill was intended to be made payable to bearer.

The words "or order," "or bearer," and "bearer," in notes or bills, are words of negotiability, without which or other equivalent words the instrument will not possess that quality, 6 and therefore the use of either of these expressions by the drawer of a bill or maker of a note, must be regarded as indicating his intentions that the paper shall be negotiable.

By naming the persons to whose order the instrument is payable, the maker manifests his intention to limit its negotiability by imposing the condition of indorsement upon its first transfer. But no such intention is indicated by the designation of a fictitious or impersonal payee, for indorsement under such circumstances is manifestly impossible; and words of negotiability, when used in connection with such designations, are capable of 7 no reasonable interpretation except as expressive of an intention that the bill shall be negotiable without indorsement-i. e., in the same manner as if it had been made payable to bearer.

It was not, before the Code, necessary for the holder of an instrument payable to bearer, to allege or prove in an action against the maker the transfers through which he derived his title (2 Greenl. on Ev., § 161, and cases there cited; 3 Phill. on Ev., 4 Am. ed., 191); and it certainly is not now.

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