de Cordova v. Sanville , 150 N.Y.S. 709 ( 1914 )

Scott, J.:

In her first cause of action after alleging the death of Varona de Cordova, and her appointment as his .executrix, plaintiff alleges that on July 1, 1905, said Varona de Cordova delivered to defendant a check for $5,000, which check was paid and defendant received the proceeds thereof; that said Varona de Cordova did not owe defendant any money and was not indebted to defendant at said time; that plaintiff has demanded of the defendant payment of said sum, but no part thereof has been paid except that on July 2, 1911, defendant paid plaintiff a certain sum as interest on said sum of $5,000. To this cause of action defendant demurs for general sufficiency in that it is not alleged that the transaction was a loan or that defendant ever promised to repay the sum paid to him by plaintiff’s testator.

The plaintiff has drawn her complaint, as to the cause of action referred to, so as to bring the case within the rule of Nay v. Curley (113 N. Y. 575).

In that case plaintiffs proved that on a certain date their intestate delivered a check to defendant, which was paid in due course and defendant received the proceeds. They also proved that on the day in question their intestate was not indebted to defendant.. Upon this state of facts a verdict was directed for plaintiffs, and from the judgment entered thereon the defendant appealed. After reciting these facts the court said: “ This made out a prima facie case of a loan. It rebutted the presumption that the check was given in the payment of a debt. This could not have been the nature of the transaction if there was no debt owing by the intestate to the defendant. The plaintiffs by this evidence repelled the presumption which would otherwise have arisen, and created the alternative presumption that the check represented a loan. The law does not presume a gift (Grey v. Grey, 41 N. Y. 552), and when the plaintiffs rested their case the burden was upon the defendant to show that the transaction was not that which the evidence on the part of the plaintiffs tended to establish, viz., a loan from the decedent to the defendant.”

If, therefore, upon the trial, the plaintiff shall prove precisely what she has alleged in her first cause of action, and no more, she will be entitled to the direction of a verdict in her favor.

It is said, however, that although these facts may raise a presumption that the transaction was a loan, yet that will be merely a presumption of a fact which should be alleged, and not left to inference.

With this view I am unable to agree. The presumption as I consider would not be one of fact, but of law. It certainly is not necessary to use the precise word “loan” to characterize the transaction. It would satisfy the most exacting critic of pleading to have alleged that defendant promised to repay the sum sued for because the essential elements of a loan are that one shall give money to another and that other shall agree to repay it. But' the obligation to repay where one gives the money to another neither as a gift nor in payment of a debt, is an obligation which the law implies from the transaction, and it is that obligation which the judgment undertakes to-enforce. It is never necessary to plead such an obligation as a promise. A familiar instance is that of a complaint for ■ the value of work, labor and service rendered for defendant at his request. As to such a complaint the Court of Appeals said: “It was not necessary to state in terms a promise to pay; it was sufficient to state facts showing the duty from which the law implies a promise; that complies with the requirement that facts must be. stated constituting the cause of action.” (Farron v. Sherwood, 17 N. Y. 227.)

In Jordan & Skaneateles Plankroad Co. v. Morley (23 N. Y. 552), which was an action to recover the amount of certain tolls, Judge Denio wrote (at p. 553): “There is no force in the objection that a formal promise by the defendant to pay the amount alleged to be due from him for tolls, is not stated in the complaint. In pleading under the Code, it is sufficient to state the facts from which the law infers a liability, or implies a promise.” In Bushnell v. Chautauqua County Nat. Bank (10 Hun, 378) Mr. Justice Smith wrote (at p. 382): “It was not necessary or proper for the plaintiff to set out the implied promise of the defendant in the complaint. It was enough to allege the facts out of which the implication arises.”

It is of course a well-known rule of pleading that it is not necessary to allege what the law will presume (Moak’s Van Sant. PI. [3d ed.] 37; Andrew’s Steph. PI. [2d ed.] § 222), and it is equally well settled that a complaint is not defective in substance for omitting to state conclusions which are to be implied from other facts sufficiently stated. (Case v. Carroll, 35 N. Y. 385, 391.)

That the presumption of a promise to repay arising out of the facts pleaded in the present case is a presumption of law, rather than a presumption of fact, seems to me to be very evident. It is a presumption of law because upon the facts pleaded, standing alone, it would be the duty of the court to direct a verdict, and it would be error to leave it to the jury to infer or not that a promise had been made. The presumption would be irrebuttable, except by the proof of other or different facts and a denial by defendant that he had promised to repay would not alone be sufficient to rebut the presumption. The distinction is very clearly made by Lawson in his Law of Presumptive Evidence (2d ed. p. 639). He says: “Rule 117. A ‘ presumption ’ is a rule of law that courts or juries shall or may draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved. Sub-rule 1. A presumption of law is a rule of law that a particular inference shall be drawn by a court or jury from a particular circumstance. Sub-rule 2. A presump tion of fact is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved.”

The judgment appealed from should be affirmed, with costs, with the usual leave to defendant to withdraw the demurrer and answer within twenty days upon the payment of all costs.

Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.