3 Mont. 442 | Mont. | 1880
This is an appeal from an order granting a new trial. Two questions are involved in the solution of the case, viz.: First. Hoes the complaint state facts sufficient to constitute a cause of action % And, second, if not, was the defect cured by the subsequent pleadings, trial and decree rendered in the case ?
The action was instituted to foreclose a mortgage, and it be
George Plaisted and 'William Nowlan were partners, and as such owned the Atlantic Cable Quartz Mill. Alexander Aiken and John B. Pearson were the owners of a two-thirds interest in the Atlantic Cable Quartz Lode. Under and by virtue of a certain written contract entered into between Plaisted and Wheelock, and Aiken and Pearson, on the 14th day of October, 1867, which by purchase and assignment became the contract of Plaisted and Nowlan, parties of the first part, and Aiken and Pearson, parties of the second part, the former agreed to construct a quartz mill, and to crush quartz thereat from the Atlantic Cable mine, for the latter, to the amount of ten thousand tons, at an agreed price per ton. In pursuance of this contract, the mill was constructed, and certain quartz crushed, whereby the parties of the second part become indebted to the parties of the first part in the sum of $40,000, to secure the payment of which they executed to Nowlan their three promissory notes, two for the sum of $13,500 each, and one for the sum of $13,000, on the 17th day of July, 1868, together with a mortgage to secure the payment of the same, upon their interest in the Cable mine, $22,928.T9T1-i7 of which indebtedness Plaisted claimed as being due to himself and Nowlan as partner, and as rightfully belonging to their partnership assets, and that Nowlan caused the notes and mortgage to be executed and delivered to himself, in fraud of the rights of his copartner. Subsequently Nowlan assigned these notes and mortgages to the banking firm of Nowlan & Weary, which becoming insolvent, made a general assignment to one Henry Thompson, and thereafter one Daniel C. Corbin, by order of the court, was substituted as such assignee, and with other property received the notes and mortgage aforesaid.
Thereupon Plaisted. on the 27th day of September, 1869, commenced an action against Aiken and Pearson, and Nowlan & Weary, and Corbin, to cause these notes and mortgages to the extent of $22,928.91 to be declared partnership assets of the firm of Nowlan & Weary, and for the foreclosure of the mortgage.
Prior to the commencement of this action, and in the month
The proposition upon which a new trial was granted is, that the complaint and supplemental complaint, so filed in pursuance of such decree, do not sufficiently or properly aver that the prom issory notes, upon which the action was instituted, had not been paid. In other words, that there was no sufficient allegation of a breach of contract. The averments of the complaint are that “ the plaintiff further shows that on the 17th day of July, 1868, a large sum of money, to wit, the sum of twenty-two thousand nine hundred and twenty-eight dollars and ninety-one cents, became and was due and payable from the said Alexander Aiken and John P. Pearson to this plaintiff and’ the defendant William Nowlan, as such partners, on account of crushing quartz at their said mill, under and by virtue of the said contract. * * . * The plaintiff further states, on the said 17th day of July, 1868, the said William Nowlan, as he alleges, to secure the payment of the said sum of $22,928.91, together with interest
There was a demurrer to the complaint, for the reason, among others, that the complaint did not state facts sufficient to constitute a cause of action, which was overruled. Thereupon the defendant Aiken answered, and among other defenses, admitted the execution of the notes and mortgage described in the complaint, and mortgage thereto annexed, by himself and Pearson, and averred that the same together with all interest thereon had been fully paid to Nowlan, and discharged, long before he knew that Plaisted claimed or had any interest therein. To this answer, Hershfield & Brother, who had been substituted as plaintiffs in the action in the place of Plaisted, filed their replication, in which they denied that the notes had ever been paid.
And thus the issues of the case were formed. There were other issues subordinate to this one growing out of the allega
A trial ensued upon the issue as to whether or not the notes had been paid, and the court, after hearing all the evidence, and having referred certain issues to referees to hear the testimony thereon and make their report and findings, and having approved and adopted such report and findings, and having heard all other proof in. the case, found as matter of fact as follows: “ That said defendants have failed to pay said notes and mortgage, or any part thereof, and the amount named therein is still due. * * * And the court further finds that there is now due to said plaintiffs on said notes and mortgage the sum of $19,928.45.”
Thereupon a decree of foreclosure in favor of plaintiff for such amount was duly rendered.
1. Does the complaint state facts sufficient to constitute a cause of action % The objection is that the averment, “that the notes and mortgage have long since, by the terms thereof, become due and payable,” is a mere conclusion of law, and, therefore, that there is no allegation of a breach of the contract sued on. What is the meaning of the allegation, “due and payable ?” Judge SwAN, in his Pleadings and Precedents, page 188, says: “It is not only an allegation of title and interest in the subject of the action, but is also an allegation that the claim is a subsisting, existing debt, and unpaid.” To the same effect are the decisions 'of New York. See Kittalls v. Myers, 19 N. Y. 231; Allen & Carpenter v. Patterson, 7 id. 478. The fact that these cases were under codes providing that, in an action founded upon a promissory note, it shall be sufficient for a party to give a copy of the note, and to state that there is due to him on such instrument from the adverse party a specified sum, does not vitiate their authority as explaining the abstract meaning of the phrase, “ due and payable.” See, also, The United States v. North Car. State Bank, 6 Pet. 29.
In the case of Frisch v. Caler, 21 Cal. 75, the court says : “ The fact of non-payment is not directly alleged, the allegation being that there is now due, etc., which is a mere conclusion of law, and would not have stood the test of a demurrer.” This question was not directly in the case decided, but it has been followed as authority, as a reference to the following cases will show. Davanay v. Eggenhoff, 43 Cal. 395; Doyle v. Phœnix Ins. Co., 44 id. 264; Roberts v. Treadwell, 50 id. 520. In the last-named case the court says : “ The complaint did not allege that the defendant had not paid the indebtedness, for the recovery of which this action was brought. It merely averred that ‘the whole thereof was now due.3 This defect in the complaint was pointed out by a special demurrer, which was overruled. The insufficiency of the complaint in the respect indicated was adverted to in Frisch v. Caler, 21 Cal. 71. Judgment is reversed and cause remanded.”
In Doyle v. Phœnix Ins. Co., the court says: “ The allegation that the same e is now due,3 may be laid out of the case, inasmuch as that is a conclusion of law merely.33
Under these authorities we must hold that the complaint is defective, in not alleging that the notes sued on still remain unpaid, and that no breach of the contract is alleged. But the authorities we have cited, and the ordinary use of language, however, shows that this defect is a mere technicality, and when a defendant has answered a complaint upon a promissory note, which alleged the amount of the indebtedness to be due and payable, by charging that the same had been fully paid and discharged, and a trial had ensued upon the issue as to whether or not the note had been paid, and where, as a matter of necessity, the proof must have covered the omitted or defective averment, after judgment, verdict or decree, we hold, under the provision of the
2. Was the defect in this complaint cured by the subsequent pleadings, trial and decree rendered in the case ?
The execution of the notes as described in the complaint and mortgage, when they were given, and for what sums, the rate of interest and when payable, was all admitted by Aiken in his answer.
Some of these admitted facts appear by way of recital in the mortgage, which is made a part of the complaint, but such recitals are to be taken as averments unless objected to by special demurrer. Winter v. Winter, 8 Nev. 135. They are not reached by general demurrer. Aiken made no question as to the amount of the notes, the rate of interest they called for or when payable. He confessed that all these things were properly set forth in the complaint and mortgage. He simply raised the issue of payment, and alleged that the notes had been fully paid and discharged. This allegation the plaintiff denied, and the cause went to trial upon this issue. It was a fair and impartial trial upon the only question in the case, and the same testimony was adduced upon either side as if the issue had been presented by the complaint and answer.
A defective complaint may be cured when the material fact omitted therefrom has been supplied by the answer.
Upon this subject Mr. Pomeroy, in his valuable work on Remedies and Remedial Rights, says: “ A defective complaint or petition may be supplemented, and substantial issues may thus be presented by the answer itself. When the plaintiff has failed to state material facts so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial, and the defect is cured. This rule should properly be confined to the case where the answer affirmatively
If he compels a trial, when he ought to have stood upon his demurrer, then he must abide the trial, providing the complaint, by the aid of the answer, the trial and the verdict, can be sustained.
If the answer is in substance the same as it would have been if the complaint had not been defective, and a trial ensued, in which the same proof was received in evidence as if the complaint contained no informality, and if, in proving the defective averment, the proof was necessarily the same as if the averment had beeu perfect, then such defect is cured by the verdict or decision rendered in the cause, for the reason that it must, of necessity, be presumed that the proof supplied the missing averment. Upon this subject Mr. Chitty says: “ The second mode by which defects in pleading may be in some cases aided is by intendment
In this case the issue joined necessarily required on the trial proof of the facts defectively stated in the complaint, as to whether the amount of the notes was due and unpaid. In attempting to prove that they were due and payable as alleged, the plaintiffs must have proved that they were due and unpaid, and so the court found. The conclusion is irresistible, that in attempting to prove the facts imperfectly stated, they must have made such proof as would have supported the averment, had it been perfect and complete. Such proof, after verdict or decree, aids the averment and cures the defect. And it does not defeat the efficacy of such proof if, technically speaking, the defective averment was but a conclusion of law. Evidently it was an at
3. There is one other consideration. The issue had been tried. It was the only one there was, or ever could be, in the case. It was tried as if a breach of the contract had been properly alleged. Proof had been introduced, pro and con, upon the issue. The question had been fairly adjudicated as to whether or not the notes had been paid. After the decree had been entered, and on argument of the motion for a new trial, the plaintiffs moved for leave to amend the complaint, so as to make the issue in the pleadings correspond with the proof, and under the decisions of this court we are unable to see any good reason, even after judgment, why such leave was not granted. See Hartley v. Preston, 2 Mon. 415; Wormall v. Reins, 1 id. 630.
Admonished by that provision of the Code which declares that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantia] rights of the parties, and that no judgment shall be reversed or affected by reason of such error or defect, and holding that the technical defect in the complaint was, after judgment and decree, cured by the averment of the answer and by the trial that ensued, in which evidence was necessarily heard upon the very fact omitted from the complaint in attempting to prove the facts defectively alleged, and believing that a defective complaint, when so aided, will support a judgment, and seeing no reason why leave was not given to amend the complaint so as to make the issue in the pleadings correspond with that of the proof, we think the court erred in granting a new trial, and the order granting the same is, therefore, set aside, and the cause is remanded. with directions to the court below to allow appellants to amend their complaint and to overrule the motion for a new trial. Judgment reversed.