Smith v. Wiswall — 2 N.Y. Super. Ct. 469

Majority

p. 469

William Smith versus Enoch Wiswall and Francis Price.

Headnote

The declaration alleged, that it was agreed between the plaintiff and the defendants, 1. That the plaintiff should subscribe for and taire 80 lots of ground, in a certain tract in the city pt N. T. “ agreeably to the conditions, as setforth-in said articles of subscription.” 2. That he should pay over, at the meeting of the said subscribers, for the division of said lots, a certain sum of money. 3. That the defendants should allow to the plaintiff) on the settlement for said lots, a certain sum as commissions, &c. It then averred a performance, on the part of the plaintiff, in the words of the agreement, as set forth, and assigned, as a breach, the nonpayment of the sum to be allowed as commissions. Upon general demurrer to this declaration, for the want of a sufficient statement of the cause of action, it was held to be sufficient, although liable, perhaps, to objections, upon special demurrer.

This case came before the court upon a general demurrer to the first count of the declaration, which set forth, that in and by a certain agreement between the plaintiff and the defendants, dated the 4th day of March, 1827, it was stipulated that the plaintiff should subscribe for, and take 80 lots of ground, on a certain tract in the city of New-Yorlc, called the Bloomingdale Tract, “ agreeably to “ the conditions, as set forth in said articles of subscription, and to “ pay over, in cash, at the meeting of the said subscribers, for the

p. 470

“ division of said lots, the sum of 3,200 dollars; and that the de- “ fendants should allow to the plaintiff, on the settlement for said “ lots, the sum of 2,800 dollars, as commissions for taking up said “ subscription.” “ And although the said plaintiff, afterwards, &c. “ did subscribe for and take the said 80 lots of ground on the said “ tract, agreeably to the conditions as set forth in said articles of “ subscription, and did also pay over, in cash, at the meeting of “ the said subscribers, for the division of said lots, the sum of 3,200 “ dollars,” yet the defendants “ wholly neglected and omitted to “ pay or allow the said plaintiff, on settlement of said lots, the said “ sum of 2,800 dollars, or any part thereof, (althoirgh often re- “ quested,) as commissions for taking up said subscription,” &c.

Mr. D. Selden, for the defendants, in support of the demurrer, contended,

that the count did not set forth the cause of action with sufficient certainty, to enable the defendants to ascertain for what they were sued. That it did not set forth the whole contract, but only a part of it, leaving all the conditions of subscription to be supplied by proof at the trial.

A declaration, on a special contract, (he said,) ought to contain such a statement of the cause of action, as to enable the defendants to present the rights of the parties as a question of law or fact, at his option. Here there is not enough set forth, for the - exercise of any such power of election, and the declaration is decidedly defective. [9 J. R. 291. 2 Bos. and Pul. 265. 1 Day’s R. 315. 1 Chitt. P. 214, 234-5, 255. 299. 300.]

Mr. E. Barnes, contra, for the plaintiff, contended,

that as the sole objection to the declaration was for an alleged defective statement of the terms of the subscription, the defendants could not take advantage of it on a general demurrer. That as they had the subscription paper in their own hands, that which was apparently uncertain, might be made certain by a reference to proof in their own possession. There is no necessity, (he said,) for setting out, with more particularity, that which is in the defendants’ knowledge. The terms of the agreement are known to them, and we have set out enough to enable the court to perceive what the con

p. 471

tract is,—-that we have fulfilled it on our part, and that the defendants have been guilty of default on their part. A general demurrer to such a declaration cannot be supported, for it admits the contract in the terms stated in the pleading.

The statement of the agreement in the declaration, is sufficient on general demurrer. The plaintiff avers performance of all the stipulations on his part, (which the demurrer admits,) and the breach assigned is of a specific character, namely, the non-payment of a certain sum of money. On a special demurrer, it might have been held that the plaintiff should set forth, more particularly, the terms of the subscription; but upon the present pleadings, there must be judgment for the plaintiff.

Judgment for the plaintiff, with leave to the defendants, &c.

[E. Barnes, Att'y for the plff.