5 N.Y.S. 518 | N.Y. Sup. Ct. | 1889
James Allen, the plaintiff herein, loaned to Fitzgerald Bros.. $1,500, and received from them their note, as follows: “$1,500. Troy, N. Y., February 27th, 1885. Six months after date we promise to pay, to the-order of James Allen, fifteen hundred dollars, at our office, 505 River street. Value received, with interest. [Signed] Fitzgerald Brothers.” Theplaintiif placed the note in the hands of his nephew James H. Allen, for safekeeping. The plaintiff can neither read nor write. James H. Allen induced the plaintiff to consent to the payment by the maker of the note of $200 for the benefit of James H. Allen, and such payment was made accordingly, and no question is raised in regard to the validity of such paymentoipon the note. The Manufacturers’ National Bank held sundry notes against the defendants,. amounting to about $1,800, which were described by Samuel G-leason, the cashier of the bank, who was a witness for plaintiff, who testified in regard to the notes as follows: “By Mr. Parmenter. Question. You are the cashier of the Manufacturers’ National Bank of Troy? Answer. Yes, sir. Q. How long have you been cashier? A. About six years. Q. Do you know the defendant Michael Allen? A. Yes, sir. Q. And his two sons, John J. and James H.? A. Yes, sir. Q. On the 30th of April, 1885, did that bank hold these six promissory notes (one made by Allen Bros., and indorsed by Michael Allen, for $300, due March 11, 1885) that were under protest; also a note made by Allen Bros., indorsed by John J. Allen and Michael Allen, for $250, due February 12. 1885, under protest; also note made by Allen Bros., and indorsed by Michael Allen, for $100, due May 17,1885; also note made by Allen Bros., indorsed by Michael Allen, for $500, due May 24,1885; also note made by John J. Allen, indorsed by Michael Allen, for $150, due May 24, 1885;
Upon this appeal substantially two questions only arise,—one of law, and the other of fact. The question of law is whether the complaint contains the statement of a cause of action sounding in tort or in contract. We have carefully examined the pleading, and have reached the conclusion that the complaint states only one cause of action, and that is for a wrong. The allegations therein in regard to the agreement between the parties must be considered matter of inducement in the nature of frame-work for the real cause of action. The gravamen of the pleading consists of the statement therein of the wrongful acts of the defendants, in contradistinction to a statement of facts showing a mere contract obligation on which the plaintiff at the trial sought to predicate the liability of the defendants to him as upon contract expressed or implied. In regard to the statements therein of contract engagements between the parties or any of them there does not seem to be much controversy, and it is quite probable that, had the complaint simply stated a cause of action for money had and received, no controversy would have arisen. We are persuaded that the pleader had no such cause of action in mind when he constructed the complaint, but, on the contrary, intended to state a cause of action in tort, and manifestly he has been successful to such an extent that the pleading cannot be changed into a complaint upon contract, by judicial construction, without violating the rules of pleading, even under the Code, which justifies great liberality in construing pleadings.
.The complaint, after the statement of the execution of the note, and setting out the same, contains the following: “Second. That the said plaintiff cannot write or read writing, and never could. That, at the time of the making of the said promissory note, the defendant James H. Allen was present as the friend and nephew of this plaintiff, and he the said defendant James H. Allen then and there took possession of said note for safe-keeping for the said plaintiff, and for no other purpose. • That the said James H. Allen never became the owner or holder of the said note, except to keep the same for this plaintiff. That the said James H. Allen never discounted or purchased the said note from or for this plaintiff, and was never authorized by this plaintiff to dispose of the said note, or to negotiate the same, or procure it to be discounted for himself or for tills plaintiff; nor did the said defendants jointly or severally, or any one or more of them, have any authority from this plaintiff to indorse his name upon said note, or to negotiate the same, or to cause the same to be discounted, for said defendants, or any of them, nor for this plaintiff; and the said defendants had no right, power, or authority to use the said note in any way or manner for their own purpose, nor to receive payment therefor, or receive any partial payment thereon, except as hereinafter stated by this plaintiff. ” The complaint contains the following statement; “Fifth. That this plaintiff never indorsed the said note for $1,500, nor authorized any person to indorse his name thereon, but that without authority therefor, and in violation of said trust under which said last-mentioned note was being held as aforesaid,
The allegations that the defendants at the time of the negotiation of the note had notice and knowledge that it was the property of the plaintiff, and that James H. Allen received it to be held by him in trust for .the plaintiff, and that the defendants wrongfully and fraudulently diverted said note, and appropriated to their own use and benefit the proceeds thereof, are statements which clearly characterize the cause of action as in tort, and negative the idea of an intended cause of action upon contract. This concluding clause in the statement of facts:' “That the said defendants, by reason of their wrongful acts by them done and hereinbefore complained of, have subjected this plaintiff to loss and damages to the amount of $1,300, together with interest thereon from the 27th day of February, 1885, and are liable to the said plaintiff therefor,” indicates very clearly the purpose of the pleader in regard to the nature of the action which he intended to institute. It was for the wrongs which the defendants had perpetrated that redress was to be sought, and not for mere violation of an agreement in neglecting or "refusing to pay. money pursuant to contract. To disregard the allegations of the complaint which characterize it as the statement of a cause of action in tort would leave the pleading without the statement of any sufficient cause of action. While pleadings under our present system are to be liberally construed in favor of the pleader, yet the principle is not to be indulged so far as to destroy all distinction between causes of actions, as, by a recognition of such distinction in the statement of the cause of action in pleadings, the orderly conducting of legal proceedings in causes mainly depends. The purpose of a pleading is to inform the party against whom it is aimed of the nature of the cause of ac-. tian upon which relief is sought, to the end that such party may prepare for the trial of the action, and not become the victim of surprise in regard to the nature of the action. In Southwick v. Bank, 84 N. Y. 429, Judge Earl very aptly remarks: “Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to