Howard v. Hunt , 57 N.H. 467 ( 1876 )

FROM CHESHIRE CIRCUIT COURT. The first objection is to the exclusion of the defendant's testimony as to what he had before told his children in reference to their selling out. No reason is obvious to me, and none is suggested in the defendant's brief, to make this an exception to the general rule, which prevents the party from putting in evidence his own statements not made in presence of the other party.

The defendant further objected that there was no sufficient allegation of notice of the facts alleged in the declaration, and no proof of such notice. The declaration contained the following allegation: "Of all which the said defendant then and there had notice." The allegation of notice does not differ from other allegations of fact. In Gould's Pleading, ch. 4, sec. 15, it is said that "in all cases in which actual notice of any fact to the defendant, or a special request is either by the terms or the nature of the contract the condition of his liability, such notice in the one case, and such request in the other, is of the gist of the action, and must, therefore, be specially averred in the declaration. For without such averment no complete right of action can appear from the declaration."

Such averment, in order to be strictly correct, must allege time and place; but ordinarily, time and place, being immaterial, are not traversable, and need not be proved. It is substantially enough if the notice appears from the allegation to have been given before the commencement of the action. A defect of this kind can only be objected to by special demurrer, and, of course, is waived by pleading the general issue, and is cured by a verdict.

The allegation, then, is well enough, but it appears that the allegation was not proved. It is said in the plaintiff's brief that it is not apparent from the case whether the declaration in this particular was proved or not. I think, however, that we must understand from the case that there was no proof of notice, because, otherwise, there would have been no question to save.

The allegation of notice, however, was so distinct a matter that it might be wholly omitted, and still leave an intelligible declaration, so that, according to the received doctrine, the verdict would be good if proof of that fact were not necessary to the maintenance of the action.

Is this one of that class of cases in which notice is of the gist of the action? The necessity of notice in an action founded upon a contract must depend upon the contract itself, and may either be expressed in its terms, or result from them by necessary implication. In the present contract, as appears from the declaration, there was no express stipulation for notice, and the question is whether any is implied.

In Vyse v. Wakefield, 6 M. W. 442, the rule is laid down by Lord ABINGER in these terms: "The rule to be collected from the cases seems to be this, — that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him. That is the common-sense of the matter, and is what is laid down in all cases on the subject; and if there are any to be found which deviate from this principle, it is quite time that they should be overruled."

In Archbold's Pleading, ed. of 1824, p. 102, the rule is laid down as follows: "So, the declaration must contain an averment of notice having been given to the defendant of a certain act done, in all cases where the action does not lie before such notice has been given. Thus, if the act on which the plaintiff's demand arises be secret, and lie only with the plaintiff's knowledge, as, if a man promised to pay such a rate for wares as another paid him, the plaintiff should allege notice of the rate which another gave; * * or to deliver so much corn at the fair, if the plaintiff approve of it." "The plaintiff must aver a notice that he approve of it; * * and the same upon a promise to repay so much to B if he disliked such lands; * * or to seal such an escrow as he or his counsel shall devise: * * or to account before auditors whom the obligee shall assign; * * or to pay plaintiff all his costs in such a suit; * * or the damages he sustained by such a battery." "But if a man be bound, covenant, or assume to pay money, convey lands, c., on the performance of an act by a stranger, no averment of notice is requisite; for it lies in the defendant's knowledge as well as the plaintiff's, and he ought to take notice of it at his peril; * * as, if he assume to pay so much when A marries; * * or when A returns to the kingdom, * * or performs such a journey; or if he assume, c., to pay so much as A shall name, or to pay if A do not pay, or to pay so much for every acre above twenty when A measures them, or to make such assurance as A shall advise D, or as his counsel shall advise. * * So, if he assume,c., to pay, c., on the performance of a certain act by the obligee himself, or on the performance of an act by him to any certain person, the performance need not be averred, for the defendant takes upon himself to take notice of it upon his peril."

Applying these rules, it appears to me that in the present case there is no implied stipulation for notice of the failure on the part of the defendant's daughter to perform, or of her revocation. In the words of Parsons (2 Parsons on Con. 671), "It is as likely to be known to the party who is to do the act required by the contract as to him for whose benefit it is to be done."

The undertaking to see that his daughter did not revoke, was an act to be done for the plaintiff's benefit.

I think it was not necessary either to aver or to prove notice.

It was because the infant had a perfect legal right to rescind the contract that the plaintiff took the defendant's guaranty that the should not do so; and I see nothing out of the way in such a contract.

The case finds a certain sum distributed. There seems to be no question that the plaintiff is entitled to recover the infant's share of that, with interest from the time of distribution. The case finds a further sum remaining undistributed. I know of no principle by virtue of which it can be assumed that any expenses of administration remained to be deducted from it. The records of the probate court showing nothing further, any facts tending to show that this sum would be subject to deductions would seem to be affirmative matter, proper to be proved by the party relying upon them.

The plaintiff paid $150 for the right to receive the infant's share of the estate. The amount of his damage was just that share, with the interest upon it. It is not necessary to settle fully what would have been the effect of accepting that tender. I think the plaintiff could not accept the tender, and at the same time claim that the infant had broken her contract. Having received no benefit from the amount tendered, he ought to make no allowance for it.

SMITH, J., and^* RAND, J., C. C., concurred.

Exceptions overruled.

^* LADD, J., did not sit.