Pierson v. Townsend & Townsend — 2 Hill & Den. 550

Majority

p. 550

Pierson vs. Townsend & Townsend.

Headnote

In traver for a bond or other written contract, the plaintiff need not give the date or recite any portion of it in his declaration; but he must allege enough to show who are the parties to the instrument.

Semble, that if the declaration designate the instrument as a contract, there ought to be an exnress averment that it was in writing.

' Demurrer to declaration. The action was trover, and the plaintiff declared, for that the plaintiff on, &c., at &c., was lawfully possessed as of his own property, of a certain contract bearing date May 21st, 1841, for the delivery of possession to one Charles Tripp or his assigns, of three dwelling houses, situate in the city of Albany—[giving the particular location and description of the houses]—which said contract was of great value to the plaintiff, to wit, of the value of $7000 of lawful money; and then alleging a loss and conversion of the contract, in the usual form. There was another count, substantially the same as the first, .except that the contract was stated to be for the delivery of

p. 551

possession of the houses to the plaintiff. Demurrer and joindfer.

A. Taber, for the defendants.

J. Holmes, for the plaintiff.

By the Court,

In traver for a bond or other written instrument, the plaintiff need not give the date, or recite any part of the deed in his declaration. Not having possession of the instrument, he may be unable to do so without- the danger of being defeated on the ground of variance. But he must show—what is omitted in this case— who are the parties to the contract. All the precedents are so. (Upchard v. Tatam, Cro. Jac. 637; Wilson v. Chambers, Cro. Car. 262; Clowes v. Hawley, 12 John. 484 ; Bissell v. Drake, 19 id. 66; Harrison v. Vallance, 1 Bing. 45; Arnold v. Jefferson, Ld. Raym. 275; 2 Salk. 564, S. C.; Alcorn v. Westbrook, 1 Wils. 115; Bac. Ab. Trover, (F.) 7th Lond. ed.; Bull. N. P. 37 ; 2 Chit. Pi., 835, ed. of 1837.) It may, perhaps, be inferred that this was a contract in writing, because it is alleged that the plaintiff lost, and the defendants found it; but it would have been better pleading to have averred that it was a contract in writing. The word contract, does not, like “ deed,” “ bond,” “ bill of exchange,” “ promissory note,” and the like, necessarily import that there was a written instrument. But the declaration is clearly bad for not stating who were the parties to the contract.

Cowen, J. dissented.

Judgment for defendants.