Adams v. Willoughby, 6 Johns. 65

Adams v. Willoughby

6 Johns. 65 | N.Y. Sup. Ct. | 1810

Per Curiam.

The instrument upon which the suit is brought is miserably defective in precision, and it is not easy to apprehend clearly its meaning. The only liquidated sum, at the date of the covenant, was the 102 dollars and 29 cents. The goods were pledged to the plaintiff for moneys owing, and for services thereafter to be performed, but how much was Owing does not appear. All the unliquidated accounts and demands were,, *67iby agreement of the parties, referred to three arbitrators, to be liquidated and ascertained ; and the defendant was to pay such sum as they should adjudge to be due. This is the just construction of the covenant, and as no such reference has been made, nor any effort on the part of the plaintiff to procure it, (for none is shown or averred,) the plaintiff is not entitled to his action for any such demand. The reference and determination of the arbitrators was a condition precedent, which the plaintiff was bound to show had been performed. So far the declaration has failed in stating a cause of action. But the liquidated sum of 102 dollars and 29 cents, the defendant was bound to pay, without such reference, and to that extent the covenant has been broken. And in covenant, if some breaches be well assigned and some not, and there is a demurrer to the whole declaration, the plaintiff shall have judgment for those breaches which are well assigned. (2 Saund. 380. Cro. Jac. 575.)

There were objections made to the form of the declaration ; and it is not, perhaps, well drawn, either in the manner of stating the covenant, or in the assignment of the breach ; but as> these are matters of form, and not of substance, they may be overlooked on a general demurrer.

The declaration, therefore, may be considered as good, so far as it relates to the non-payment of the 102 dollars and 29 cents; and the plaintiff is entitled to judgment for that breach of the covenant.

Judgment accordingly.