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Graham v. Camman, 13 How. Pr., 360.

If the contract is to deliver “on surrender of this receipt” a demand 5 and tender of the receipt is essential in an action for breach of the contract. Ganley v. Troy City Nat. Bk., 98 N. Y., 487, 495.

Where the contract makes demand a condition of plaintiff's right-as on a continuing bailment, the statute of limitations does not begin to run against an action on the contract (as distinguished from an action for conversion) until from time of demand. Code Civ. Pro., $ 410, subd. 2 ; Ganley 2. Troy City Nat. Bk., 98 N. Y., 487, 493.

As to a fiduciary who is entitled to have demand made on him, the statute begins to run against an action for money or property received or detained, from the time when he who had a right to demand had actual knowledge of the facts on which that right depends. Code Civ. Pro., $ 410, subd. 1.



New York Superior Court, General Term, 1856.

[Reported in 5 Duer, 697 ; s. C. 13 How. Pr., 360.]

1. A complaint held good on demurrer which stated substantially that on

a day specified an account was stated between the parties, and that upon such statement a specified balance was found due from the defendant to the plaintiff, which balance defendant thereupon agreed

to pay, but has refused so to do. 2. A demurrer on the ground that the complaint does not state facts

sufficient to constitute a cause of action raises only such objections as render it bad on general demurrer at common law, or bad for want of

equity in chancery. 3. If defendant requires a greater degree of certainty in the complaint,

his remedy is to move that it be made more definite and certain.

Action on an account stated.


The complaint was as follows:

That the defendant, on the 10th of May, 1855, became and was indebted to the plaintiff in the sum of $446.25, upon a balance of an account stated, and then due and owing to this plaintiff; and which the said defendant then and there agreed and promised to pay, but that he has neglected and refused to pay the same, except the sum of $150 paid by him to the plaintiff on the 22d day of August, 1855, on account of the aforesaid balance of indebtedness. And further, that the

Graham v. Camman, 13 How. Pr., 360.

2 defendant remains indebted to the plaintiff in the sum of

$296.25, with interest, etc. For that amount and costs judgment is demanded.

Defendant demurred, assigning as ground that the complaint did not state facts sufficient to constitute a cause of action.

At Special Term the demurrer was overruled.

Defendant appealed.



The Court at General Term affirmed the order.

HOFFMAN, J. [after stating above facts] : We think the complaint, although loosely drawn, may, upon general demurrer, be treated as stating substantially that on the 10th of May, 1855, an account was stated between the plaintiff and defendant; and that, upon such statement, a balance of $446.25 was found due to the plaintiff from the defendant. A promise to pay this balance is averred, a payment of $150 on account, a refusal to pay the rest, and an allegation that the residue, viz., $296.25, is now justly due from the defendant.

This case cannot be well distinguished from that of Cudlip v. Whipple, in this court (1 Abb. Rep., 106). The difference is only in the omission to state the nature of the items of the account, viz., for money paid, laid out and expended. It was not alleged that the account had been stated.

That case was decided upon Allen v. Patterson (3 Seld., 496), holding that a complaint in an action for the recovery of goods sold, substantially in the old form of a declaration in indebitatus assumpsit, was good under the code.

The old form of a declaration on an account stated is found in 2 Chitty Plg., 90. It was: “That, whereas the defendant had, on, etc., at, etc., accounted with the plaintiff of and concerning divers sums of money from the defendant to the plaintiff, before that time due and owing and then in arrear and unpaid; and upon such accounting the said defendant was then and there found in arrear and indebted to the plaintiff in the sum of $

and thereupon, being so indebted, he promised to


pay, etc.

It is obvious that the sixth subdivision of the 144th Section of

Graham v. Camman, 13 How. Pr., 360.

of the Code as to demurrers [Code Civ. Pro., $488, Subd. 8] 6 has been framed from the form of the general demurrer at common law or in equity. Such must have gone to the whole cause of action and be for matter of substance, not of form. (See Chitty on Pleading, 664, and cases.)

In Richards v. Beairs (28 Eng. L. & Eq. Rep., 157), the question was under the 50th Section of the common law procedure act, which is substantially the same as the 6th subdivision referred to. The court say that the question was whether the declaration would have been good upon general demurrer before

7 the act, and it was held bad upon that ground. COMPTON, J.,

, , said: “If we are to hold pleadings good where the parties do not choose to say what they mean, we should be getting into the region of ambiguity and uncertainty, which would be a worse evil than that which the statute intended to remedy.

The rule was well stated in Richards v. Edich (17 Barb., 260). A demurrer under the 6th subdivision applies only to such defects as would render the count bad upon general demurrer at law, or bad for want of equity in chancery. The complaint, therefore, to be overthrown by such a demurrer must present 8 defects so substantial in their nature and so fatal in their character as to authorize the court to say, taking all the facts to be admitted, that they furnished no cause of action whatever. Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained; and if the defendant requires a greater degree of certainty than is found in the complaint, he must seek his relief by a motion under the Code that the pleading be made more certain and definite. We consider the rule as thus stated to be a true and beneficial

9 one; and it is so to be regarded in this court.

Order of Special Term overruling demurrer affirmed.
WOODRUFF and BoswORTH, JJ., concurred.

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Fowler v. N. Y. Indemnity Ins. Co., 26 N. Y., 422.


New York Court of Appeals, 1863.

[Reported in 26 N. Y., 422.]

1. In an action on a fire policy the complaint must show that the

plaintiff had an insurable interest in the property insured. 2. If it shows that plaintiff is an assignee of the policy, and that the

insurable interest was in the assignor at the time the policy was issued, and that the assignment of the policy to plaintiff was before the loss, it must also show that plaintiff had acquired an insurable

interest in the property at the time of the loss. 3. Otherwise, it seems, of a marine policy.

1 Action on a fire policy.

The allegations of the complaint were:

[I.] That the defendants are a corporation, duly incorporated under the laws of the State of New York, having full power and authority to make the contract hereinafter set forth.

[II.] That in and by a certain policy of insurance duly issued by the said defendants, and numbered 2002, and duly signed by

the president and secretary of said defendants, and duly counter2

signed by the agent of the company at Newburgh, in the county of Orange, on the 6th of January, 1853, the defendant, in consideration of the sum of thirty dollars, to them paid by Robert Caldwell, of [etc.], did insure him against loss or damage by fire to the amount of two thousand dollars on his [describing the structures], and the said defendants, in and by the said policy of insurance, did promise and agree to make good unto the said

Robert Caldwell, his executors, administrators and assigns, all 3 such loss or damage not exceeding in amount the sum insured as

aforesaid, as should happen by fire to the property as therein and herein specified during the term of one year from the 6th day of January, 1853, to the 6th day of January, 1854, the said loss or damage to be estimated according to the true or actual value of said property at the time such loss or damage should happen, and to be paid within sixty days after notice and proof thereof, made in conformity to the condition annexed to the said policy, provided, and upon the condition in said policy mentioned and

Fowler v. N. Y. Indemnity Ins. Co., 26 N..Y., 422.


expressed, as by the said policy of insurance, reference being 4 thereunto had, will more fully appear.

[III.] That on or about July 7, 1853, and while said contract of insurance was remaining in full force and effect, the said [designating the structures) mentioned in said policy of insurance, were destroyed by fire, excepting portions of the walls of said three-story building and parts of said water-wheel.

[IV.] That the true and actual cash value of the said [structures), so destroyed by fire, at the time of the destruction thereof was at least the sum of $3,400—and that the loss sustained by such fire was at least the sum of $2,200.

[V.] That on the sixth day of January, 1853, the said Robert Caldwell hereinbefore named, by and with the written assent and approval of the defendants duly made, given and indorsed in said policy, to which assent and approval the plaintiff prays leave to refer, duly assigned and transferred to the plaintiff, his executors, administrators and assigns, all the right, title and interest of said Robert Caldwell in and to the aforesaid policy of insurance.

[VI.] That on the twelfth day of July, 1853, the said Robert 6 Caldwell made and executed to Chauncey F. Belknap, of Newburgh, Orange County, a general assignment of all his property, real and personal, in trust for the payment of his debts.

(VII.] That the plaintiff is now, and at the time of the destruction by fire of said property, insured, as aforesaid, was, the lawful owner and holder of said policy of insurance, and as the lawful owner and holder of the claim and demand arising and accruing against the defendant because of the destruction by fire of the property mentioned in said policy, and is entitled

7 to have, demand and receive from the defendants the amount of the loss or damage sustained by the destruction of the property aforesaid by fire as aforesaid.

[VIII.) That plaintiff has performed and complied with the conditions of the said contract of insurance on the part of the said Robert Caldwell, or his assigns, to be kept and performed.

[IX.] That after the destruction of said property by fire as aforesaid, the plaintiff forthwith gave notice thereof to the defendants, and within a reasonable time thereafter, and as soon

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