Clough v. Hoffman

5 Wend. 499 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

I am inclined to think that the averments, the want of which are objected to, were not necessaiy, and that the declaration is good upon general demurrer. The covenant of the defendants bound them not only to indemnify the plaintiff against, but also absolutely topayall the company debts. These debts must be presumed to be as well known to the defendants as to the plaintiff. It is also to be presumed, nay it is expressly averred in the second count, that all the books of account, vouchers, &c. belonging to the firm were banded over and transferred to them. They therefore had more ample means for ascertaining the debts due from as well as to the firm than were in the possession of the plaintiff; and it is a general rule in pleading, that where the matter does not lie more properly in the knowledge of the plaintiff than of the defendant, notice need not be averred. 1 Chitty’s Pl. 320. 1 Saund. 116, n. 2, and cases there cited. Comyn's Dig. tit. Pleader, C. 73, 4, 5. 2 Saund. 62, a. n. 4. The case of Buffield v. Scott and others, 3 T. R. 374, shews that the plaintiff was not bound to give notice to the defendant of the suit brought by Tucker for the recovery of the debt which the plaintiff subsequently paid. Notice of the payment of the money by the plaintiff and (he consequent injury to him, though usually averred, appear not to be matter of substance in a case like this, and therefore not reached by this general demurrer. The covenant to pay all the company debts was at all events broken ; for the demurrer admits that the debt paid by the plaintiff to Tucker was a partnership debt, and no notice of the existence or claim of that demand could be necessary.

Judgment for plaintiff on demurrer, with leave to defendants to plead on payment of costs.