Les Successeurs D'Arles, Dufour & Cie. v. Freedman

Headnote

Pleading—“ Arrangement of claim,” what constitutes and how pleaded—■ Condition precedent—how must be pleaded under Code Civ. Proc. § 533.

Appeal by defendant from judgment for plaintiff, for the demand of complaint, entered upon order sustaining plaintiff’s demurrer to defendant’s answer.

Action upon promissory notes.

The answer did not deny any of the averments of the complaint, but set up certain matter both as defense and counter-claim. They were as follows :—The defendant was largely indebted to the plaintiffs, and to other persons. The plaintiffs agreed with the defendant that “if he would arrange his then existing indebtedness by payment, or obtaining an extension thereof, or in any other way, and in case he arranged a certain claim then in suit against this defendant, of Strahlheim & Hertz, of Paris, France, amounting to $16,000, which claim was contested

and disputed by defendant, and which claim this defendant then and now believes was not valid to any extent,” the plaintiff would give the defendant credit in not less than $25,000, and would deliver certain quantities of velvet and silk of the value of $25,000, theretofore ordered by defendant, &c.; “ and this defendant likewise agreed on his part, to obtain said extension and arrangement.” The answer avers that the defendant did, “by payment and arrangement with his creditors obtain such extension.” But it does not show that he arranged the claim of Strahlheirn & Hertz. It avers that he made and executed his bond in the sum of $5,000, to secure which his wife executed a mortgage upon her real estate, “for the express purpose of procuring the discontinuance of such suit of Strahlheim & Hertz, and for the purpose of carrying out and executing the terms of said agreement.” It no where avers that the suit was discontinued, or the purpose effected. It only alleges that the defendant notified the plaintiff of his settlement of the Stralheim & Hertz suit.

The Court at General Term (after stating the facts as above), said :—“ This does not show, that there was a settlement. If the settlement of the claim was a condition precedent, or was part of the consideration, it is not the same as a discontinuance of the suit, upon the claim, or a settlement of the suit. The claim might survive both. It is urged that the defect in these respects is remedied by a further allegation that c this defendant in all respects carried out his agreement on his part.’ Such an allegation, if intended to plead that the defendant had performed, as conditions precedent, what is referred to as the agreement on his part, is ineffectual to that end. The only relief from pleading, as was required at common law, the doing the acts claimed to be the performance of the conditions, is found in section 533 of the Code of Civil Procedure. 1 In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance, but the party may state generally that he duly performed all the conditions on his

part.’ To take the advantage of this statute it is necessary to plead, substantially in the words of the statute,- and the answer does not plead in that way. If the matters form the consideration, the thing done should be specifically alleged. If again, the answer intends to show the performance of an agreement made by defendant, the acts done should be averred. As the answer on this point now stands, the averment of performance of the agreement on defendant’s part is a statement of a conclusion or opinion. As the plaintiffs were to be bound only in case the. defendant should ‘arrange’ Strahlheim & Hertz claim, and as the-answer does not allege that it was arranged, the defendant shows no cause of action or valid counter- claim. The matters set up in the answer were not a defense, nor did they constitute a valid counterclaim.”