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Pettibone v. Stevens

6 Hill & Den. 258 Court N.Y. Sup. Ct. English

Contents

Majority

p. 258
Pettibone vs. Stevens and Valentine.

Headnote

Where a count in assumpsit assigns several breaches, the defendant cannot demur to one breach and plead to the others, but must plead or demur to the whole count.
If some of the breaches be well assigned, and the others not, the defendant may, under the plea of non assumpsit, object on the trial against receiving evidence as to the defective breaches, or assessing damages upon them.
In covenant, or in debt on bond assigning breaches, the defendant may plead to the breaches well assigned, and demur to the rest. Per Bronson, J.
Assumpsit on a special agreement by which the plaintiff was to deliver a quantity of logs, for which the defendants agreed to pay 68 cents each; one half to be paid on delivery, and the remaining half in ninety days. Averment, that the logs were delivered, and that the defendants have not paid the one half of the price which was payable on the delivery, nor the remaining half which was payable in ninety days thereafter. To so much of the count as related to the second breach, viz., the non-payment of one half the price in ninety days, the defendants demurred, because the credit had not expired at the time the action was commenced; and as to the remainder of the count, they plead,ed the general issue. Afterwards they entered the plaintiff’s default for not joining in demurrer.
P. Cagger, for the plaintiff,
moved to set aside the default, and also to set aside the demurrer, for irregularity, on the ground
p. 259
that the defendants could not demur to a part of the cormt, and plead to the residue. He cited The People v. Brush, ( 6 Wend. 454 ;) Adams v. Willoughby, ( 6 Johns. 65 ;) Rickert v. Snyder, ( 5 Wend. 104 ;) Hicok v. Coates, (2 id. 419;) Jackson v. McClaskey, (id. 541;) Underwood v. Campbell, (13 id. 78.)
E. Pearson, for the defendants,
cited 1 Saund. Rep. 108; Brown v. Stebbins, ( 4 Hill, 154 ;) Douglass v. Satterlee, ( 11 Johns. 16 , 22;) 1 Chit. Pl. 664, 586, 643.

In covenant, and in debt on bond assigning breaches of the condition, the defendant may plead to each of the breaches, or he may plead to some and demur to others. But we are not referred to any authority for applying the same rule in the action of assumpsit, and I think there is a difference in principle between the two cases. In debt or covenant, the plea of non est factum admits the breaches, and the plaintiff is only obliged to prove the making of the deed. But in assumpsit, the plea of non assumpsit puts in issue the breach or breaches as well as the contract, and the plaintiff must prove both before he can recover. As there is no necessity for pleading specially to the breaches, and as the right to do so seems not to be established by the precedents, I think such pleading should not be allowed. It can lead to nothing but useless expense and delay. If no breach is well assigned the defendant may demur to the whole declaration or count. If one breach is well assigned and others are not, the defendant may, under the plea of non assumpsit, object on the trial against receiving evidence or assessing damages on the defective breaches; and if he is overruled, he may have redress upon a case or bill of exceptions. Here the money was payable by instalments, and if the last instalment was not due when the suit was commenced, the defendant may take the objection on the trial.

Motion granted.

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