Glover v. Tuck

By the Court, Cowekt, J.

The first breach is defective, m not averring that the draft was drawn on all the defendants. That it was drawn on one only, with the consent of the others, perhaps may, or may not, according to the_ circumstances, amount, on the evidence, in legal effect, to the same thing. This, however, does not excuse the plaintiff from averring, by way of pleading, a compliance with the condition precedent according to its terms. He might, perhaps, have sustained himself against a general demurrer, by detailing facts amounting argumentatively to the same thing. Here he has not, I think, done even that; but it is enough, that the defect is pointed out by a special demurrer. We held, when the cause was before us on the first demurrer, that the presentation of a draft was a condition precedent; and that the condition must be complied with, before the defendants could be sued for a default in not fulfilling their covenant to pay. (See 24 Wend. 153.) The covenant is to honor drafts on all the defendants.

There is some difficulty in making out what is called a second breach in- the first count, to be such. It is simply that the defendants did not nor would furnish the plaintiff with funds. Looking at the context, however, I presume it means, funds to purchase a steam engine, which the plaintiff says before, in his declaration, he had requested of the defendants. There is no covenant to furnish such funds, independently'of the drafts; hut a mere authority to lay out funds in the purchase of the engine, when furnished by the drafts. This demurrer is, therefore, well taken.

The demurrer to the third breach in the first count, and the demurrer to the second count, are neither of them well taken. They both go on the ground, that the plaintiff has not averred that he incurred necessary expenses, but merely that he necessarily incurred the expenses. This is a difference on words which are equivalent. The averment is full, that the expenses were incurred within the terms of the contract, showing their character with a particularity quite sufficient, and full notice to the defendants, with due requests.

Thefirst two demurrers are allowed; the last two overruled.

Judgment accordingly.