Glover v. Tuck — 1 Hill & Den. 66

Majority

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Glover vs. Tuck, Ewen, T. B. Bunker and C. Bunker.

Headnote

Covenant by the defendants to honor the plaintiff’s drafts on them, to a given amount, and authorizing him, with the funds thus raised, to purchase a steam engine, &c. to be used in a common enterprise, they moreover to defray his necessary expenses incurred in preparing for, and prosecuting the enterprise: Breach, that the defendants did not honor &c. a draft drawn by the plaintiffs, with the consent of the defendants, on one of them, who accepted it: Held, not a sufficient breach—the defendants being only bound to honor drafts when drawn on all.

Held, also, that a breach alleging a refusal to provide funds after request, &c. for .the purpose of a steam engine, was bad; there being no covenant to provide funds for that purpose independently of the drafts.

But a breach was held well assigned, which alleged a refusal, after request, &c. to defray expenses of the plaintiff necessarily incurred, the declaration showing for what the expenses were incurred, and thus, that they were necessary expenses within the covenant.

Demurrer to declaration. The action was covenant, on articles executed by all the parties, whereby they covenanted, each with all the rest, to pay their proportion of the expense, needful and incidental to the erection of a steam saw-mill in Michigan^ and such sums as might be required for fixtures, &c.

The defendants covenanted to honor the plaintiff’s drafts an them, to be made from time to time, as his contracts and the execution of the proposed plan might require, to an amount not exceeding $8000; and that he might, with the funds to be thus raised, procure a steam engine, &c.; and

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they covenanted, also, to defray the plaintiff’s necessary expenses, and to advance his proportional part of the common outlay.

The averments in the first count were, that, with the consent of the defendants, a certain draft was drawn by the plaintiff upon and accepted by said Ewen, (describing it,) as the means of providing, in part, funds to be applied to the purposes mentioned in said agreement. That it was customary to pay in advance for steam engines at the "time of the contract ; and that in this case, the advance would have exceeded $500, of all which, &c., (special notice.) That the plaintiff was ready and could have entered into a suitable contract, &,c. had he been furnished' with funds; and he endeavored to raise them on the draft, but could not, of all which, &c., (special notice,) and he requested the defendants to provide the necessary funds to enable him to enter into such contract. That in travelling to- and remaining at various places, upon and in the transaction of said business as aforesaid, he necessarily incurred divers expenses ibr travel, meat, drink, lodging, washing, and in postage, and continued to incur, <fcc.; and on, &c. gave notice to the defendants, and requested them ■ to furnish him with $500 to defray such expenses; that the defendants refused, and, by reason thereof, the plaintiff was put to additional expense. That he gave a particular account of his expenses, so necessarily incurred by him under the agreement aforesaid, in travel, <fcc. and whilst he was engaged, <fcc. and was necessarily employed and detained in and about the said business as aforesaid—amounting- to $457,11. Yet the defendants, not regarding, (fee. did not nor would honor, or cause to be honored, said draft, by paying, fyc. the whole or any part, fyc. though it was presented, [showing how,] but suffered it to be dishonored and protested.; and did not nor would, in any manner, provide said plaintiff with funds ; and did not nor would defray the necessary expenses of said plaintiff, or any part thereof.

The second count was on the same articles, but confined itself to a breach in the non-payment of expenses necessa

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rily incurred by the plaintiff, in prosecuting the business on his part. The manner in which they were incurred, was set forth with great particularity. They were averred to have been incurred for the purposes of the agreement, with special notice to the defendants, and their refusal to pay.

Oyer, and then demurrer to the breaches, severally, in each count. Joinder in demurrer.

D. P. Hall, for defendants.

J. Greenwood, for plaintiff.

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,

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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.